THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2009-118
PARTIES
Mr. Uldis Smorodovs
(represented by Richard Grogan & Associates, Solicitors)
and
Sheratin Plastering Limited
File Reference: EE/2006/463-4
Date of Issue: 21st December, 2009
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - harassment - failure to establish a prima facie case of discrimination
1. Dispute
1.1 This case concerns a complaint by Mr. Uldis Smorodovs, a Latvian national, that he was discriminated against by Sheratin Plastering Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of conditions of employment, harassment and in relation to a collective agreement. The complainant has also referred a complaint under the Pensions Acts, 1990 to 2004 in which it was claimed that he was subjected to discrimination on the grounds of his race on the basis of the respondent's failure to join him into the Construction Workers Pension and Sick Pay Scheme.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 17th November, 2006 alleging that the respondent had discriminated against him on grounds of race as regards his conditions of employment, harassment and in relation to a collective agreement. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case on 28th May, 2009 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 9th December, 2009.
3. Summary of the Complainant's case
3.1 The complainant, who is a Latvian national, was employed by the respondent as a plasterer's labourer from April, 2006 until October, 2006. The complainant stated that there were two other employees (of Irish nationality) employed by the respondent as plasterers during his period of employment. The complainant stated that he received no written contract or terms of employment and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The complainant submitted that following the Decision of this Tribunal in 58 Complainants -v- Goode Concrete there is an obligation on an employer to provide employees with a written contract of employment in a language which they understand. The complainant stated that he was not aware if 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 submitted that the respondent failed to provide him with a health and safety statement or any health and safety training eventhough he was working in a potentially dangerous business. The complainant submitted that the respondent's failure to provide him with a health and safety statement in a language which he could understand amounts to discrimination within the meaning of the Acts.
3.3 The complainant submitted that the respondent failed to provide him with payslips. The complainant stated that his requests for payslips during the course of his employment were dismissed by the respondent. The complainant further submitted that the respondent failed to deduct any tax or social welfare contributions in respect of the remuneration he received during the course of his employment. It was submitted that this failure to deduct tax and social welfare contributions resulted in the complainant being unable to claim Child Benefit in respect of his children following the termination of his employment. The complainant submitted that an Irish employee would have been aware of an employer's statutory obligation to make these deductions and would have insisted that his/her employer adhere to these statutory obligations. It was therefore submitted that the complainant, as a non-Irish national, has been treated less favourably than an Irish national would have been in relation to this aspect of his employment.
3.4 The complainant also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001).
4. Summary of the Respondent's case
4.1 The respondent's representative informed the Tribunal in a letter dated 8th December, 2009 that the respondent had ceased trading and accordingly, that it would not be pursuing the present complaint. The respondent did not attend nor was it represented at the Hearing of the complaint. However, the respondent did furnish a written submission to the Tribunal, prior to the date of hearing, in response to the alleged discrimination by the complaint. The respondent's written submission can be summarised as follows.
4.2 The respondent submitted that the company was formed in order to obtain work as a sub-contractor on building projects. The respondent employed two plasterer's labourers, one of whom was the complainant and the other an Irish national. The owner of the company was also employed as a plasterer. The respondent denies that the complainant was subjected to discrimination on the grounds of his race and it submitted that both the complainant and the Irish national, who was employed as a plaster's labourer, were treated exactly the same in terms of their conditions of employment.
4.3 The respondent submitted that neither the complainant nor the Irish plasterer's labourer were furnished with payslips, a written contract of employment, a health and safety statement/training. The respondent accepted that it may have been in breach of employment legislation (other than the Employment Equality Act) but it submitted that this did not amount to discrimination as the complainant was not treated less favourably than the Irish employee in terms of his conditions of employment. The respondent submitted that during the course of his employment, the complainant did not express any dissatisfaction with his terms or conditions of employment and that he got on exceptionally well with his work colleagues. The respondent submitted that the complainant was employed for a period of approx. six months before he left the employment of his own volition, ostensibly for a holiday in Latvia, and never returning thereafter.
5. Conclusions of the Equality Officer
5.1 At the outset of the hearing of the complaint, the complainant's representative withdrew the complaints relating to a claim in respect of a collective agreement and the complaint of harassment. The complainant's representative also withdrew the complaint under the Pensions Acts, 1990 to 2004. Accordingly, the only issue for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards his conditions of employment.
5.2 Section 85A of the Employment Equality Acts, 1998 to 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. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Firstly, I will consider the issue that has been raised by the complainant in relation to the respondent's failure to provide him with payslips, a written contract of employment and a health and safety statement/training in a language which he could understand which he contended constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The complainant has submitted 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/health and safety statement in a language which they understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes it's employees with contracts of employment/health and safety statements it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment/health and safety statement in English and not in a language which they can understand.
5.4 In the present case, I note the complainant stated in evidence that he was the only non-Irish national employed by the respondent during the course his period of employment. He also stated that there were three Irish nationals employed by the respondent at that time. The complainant stated that he was not aware if the respondent had issued any of the other employees i.e. those of Irish origin, engaged at the same time as him with payslips, a written contract of employment or a health and safety statement/training. The complainant submitted that an Irish employee would have been aware of his/her rights under both employment and health and safety legislation, and therefore, would have insisted that the respondent comply with it's obligations in terms of this aspect of their conditions of employment. It was therefore submitted that the Tribunal should infer that the complainant has been subjected to less favourable treatment on the grounds of his nationality and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.5 In considering this issue, I have taken cognisance of the recent determination of the Labour Court in the case of Melbury Developments Limited and Valpeters . In that case the Labour Court stated, inter alia, that:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5.6 In the present case, I accept that the complainant has adduced evidence to suggest that he may have been treated badly by the respondent in terms of the provision of payslips, a contract of employment and a health and safety statement/training. However, I do not have any jurisdiction to decide whether or not the respondent was in breach of it's obligations under the relevant employment and/or health and safety legislation. In this regard, I note that the complainant has referred claims to the Rights Commissioner under the relevant legislation that has been enacted to deal with alleged breaches of an employer's obligations in relation to the aforementioned issues.
5.7 Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination under the Employment Equality Acts. I am therefore not satisfied that the complainant, in the present case, has adduced any evidence from which I could reasonably conclude that he was treated less favourably than other workers of a different nationality (i.e. those of Irish origin) in terms of the respondent's failure to provide him with payslips, a written contract of employment or a health and safety/training. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.8 The final issue that I must consider relates to the complainant's contention that the respondent failed to deduct tax or social welfare contributions in respect of the remuneration that he earned whilst in it's employment. The complainant claims that the respondent was engaged in social welfare fraud and tax evasion which resulted in him being unable to claim Child Benefit in respect of his children upon the termination of his employment. The complainant submitted that this constitutes discriminatory treatment of him on the grounds of race contrary to the Acts on the basis that an Irish national would have been aware of an employer's statutory obligation to make these deductions and therefore, would have insisted that his/her employer adhere to these statutory obligations.
5.9 In considering this issue, I would make the point that this Tribunal does not have any jurisdiction in relation to issues regarding the compliance or otherwise by an employer with it's obligations under tax or social welfare legislation. I note that the complainant could not confirm whether or not the other employees i.e. those of Irish origin engaged by the respondent during his period of employment had the appropriate tax and social welfare deductions taken from their remuneration by the respondent. Therefore, having regard to the evidence adduced in the present case and in applying the reasoning of the Labour Court in the Melbury Developments Limited case, I am not satisfied that the complainant has established any facts from which it could be inferred that he was treated less favourably than other workers of a different nationality (i.e. those of Irish origin) in terms of tax and social welfare deductions. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8(1)of the Acts. Accordingly, I find in favour of the respondent in this matter.
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Enda Murphy
Equality Officer
21st December, 2009