EQUALITY OFFICER'S DECISION NO: DEC-E/2009/122
PARTIES
STUKONIS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
COALPORT BUILDING COMPANY LTD.
File No: EE/2008/083
Date of issue 31 December, 2009
Headnotes: Employment Equality Acts, 1998&2007 sections 6,8, 14A and 77 - discriminatory treatment - discriminatory dismissal- race -prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Irmantus Stukonis, 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) dismissed by the respondent in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a security operative between June, 2005 and November, 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) dismissed by the respondent on the same discriminatory ground. The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 8 February, 2008. 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 1 May, 2009, the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 19 November, 2009.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Lithuanian national, commenced employment with the respondent as a security operative on 29 June, 2007. He states that he got the job through a friend (Mr. X) and he received his hours of employment and other information through this person. He did not know who the security supervisor was and did not remember meeting anyone in authority from the respondent during his period of employment. The complainant states that he received some papers - he could not remember what they were - but received no contract of employment. He states that he is unable to say whether or not other security personnel - he only knew three others who were all Lithuanian - received contracts of employment. The complainant makes a similar assertion about health and safety training and documentation. It is submitted on the complainant's behalf that the aforementioned constitutes unlawful discrimination of him on grounds of race contrary to the Acts. The complainant seeks to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete in support of his complaint on these two issues.
3.2 The complainant states that he reported for duty about 8pm on Saturday 3 November, 2007 - which was about one hour before his shift was due to commence. He adds that on arrival there were two strangers on the site and when he confronted them he was assaulted. The complainant states that he contacted Mr. X - the person who was his contact/link with the respondent - who told him to go home and that he did not have to work. The complainant states that some time later that evening he received a phone call from Mr. X telling him he was to attend a meeting with the Manager the following Monday. The complainant adds that he attended this meeting but was unsure what was happening. He adds that a few days later he was told by the Manager who had attended the meeting on Monday that he was fired. It is submitted on behalf of the complainant that this treatment constitutes discriminatory dismissal contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent accepts that the complainant was not given a written contract of employment or written terms and conditions during his period of employment. It states that the contract with the complainant was a verbal one and any terms would have been set out to the complainant by the Site Manager on recruitment, using the services of another employee to translate. The respondent states that the complainant was given the relevant points of health and safety issues during the Site Safety Induction and subsequent Toolbox Meetings, using the services of another employee to translate. It adds that health and safety documentation was displayed in canteen areas and it was translated into Polish - this material was available at all times. It therefore rejects that it discriminated against the complainant on the basis of his nationality contrary to the Acts.
4.2 The respondent states that it received a report of a burglary at the site at approximately 8pm on 3 November, 2007. It states that the Site Foreman contacted Mr. X and was informed that the security personnel were in a local shopping centre. It adds that the Site Foreman told them to return to the site immediately where he instructed them to report for a meeting with the Project Manager the following Monday. The respondent states that the complainant attended this meeting with three colleagues. It adds that in the course of this meeting the complainant stated he had been assaulted on the site on the Saturday evening and had been told to return home by Mr. X. The respondent states that it had not instructed Mr. X to allow the complainant return home that evening and as there were no apparent signs that he had been assaulted it requested him to produce medical evidence to that effect by 8 November, 2007. The respondent states that the complainant did not do so and the Financial Director decided to dismiss him effective from 8 November.
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) dismissed the complainant in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 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 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.."
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Lithuanian.
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 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.
5.4The first issue raised by the complainant relates to the respondent's failure to furnish him with a written contract of employment. It is accepted by the respondent that this was the case and it states this was the situation for a number of other employees also. 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 was unable to say whether or not other employees received contracts of employment. Notwithstanding this it was submitted on behalf of the complainant that he was treated badly by the respondent and this Tribunal was asked to infer that this treatment was because of his nationality. In a recent Determination the Labour Court held "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 nationality were or would be treated more favourably." The Court went on it that Determination to state that "All that has been proffered in support of that contention is a mere assertion unsupported by any evidence" and held that the complainant had failed to discharge the initial probative burden required.
5.5 In the instant complaint it is common case that the respondent did provide the complainant with a contract of employment but I am not satisfied he has adduced evidence that this was because of, or connected with, his nationality. 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. That is not what happened in the instant case. In light of my comments in this and the preceding paragraph, I find that the that the complainant has failed to establish a prima facie case of discrimination on this element of his complaint.
5.6 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 complainant was unable to say whether or not other employees received the appropriate health and safety instruction or documentation. However, the respondent stated that it provided health and safety training and documentation - the former in English, the latter in English and Polish to employees. I am satisfied that the complainant is not competent in either of these languages and it follows therefore that he has established a prima facie case of discrimination on grounds of race in respect of this element of his complaint. The respondent adduced no evidence to rebut this inference and consequently the complainant is entitled to succeed on this issue.
5.7 The final element of the complainant's case deals with his alleged discriminatory dismissal. Having evaluated all of the evidence adduced by the parties (both oral and written) I am satisfied, on balance, that -
(i) the site where the complainant work was burgled sometime before 8pm on the evening of 3 November, 2007,
(ii) the complainant was not due to commence his shift until 9pm that evening,
(iii) the complainant contacted Mr. X, as he had always done when issues around work arose because he was the only link the complainant had with the respondent, to inform him he had been assaulted at the site and he (Mr. X) informed the complainant he could go home,
(iv) the complainant attended a meeting on Monday 5 November, 2007, along with three other Lithuanian colleagues, at which the respondent advised that if he did not produce medical evidence that he had been assaulted, he would be dismissed,
(v) the complainant's English is poor,
(vi) the respondent did not provide interpretation facilities at that meeting and one of the complainant's colleagues translated what occurred at the meeting for him, and
(vii) the respondent did not have a disciplinary policy in existence at the time.
5.8 In Campbell Catering v Rasaq - a case concerning a worker who was dismissed having been accuses of stealing goods which belonged to her employer and was subsequently subjected to a disciplinary process by her employer, the Labour Court held as follows -
"It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence.... Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the and is given appropriate facilities and guidance in making a defence. In such cases, applying the same procedural standards to a non-national worker as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.".
5.9 In the instant case the respondent did not make any effort to ensure that the complainant fully understood the gravity of the allegations against him and the potential consequences of same. Whilst it is a fact that the other employees dismissed along with him were also Lithuanian his circumstances can be distinguished from those as he was not rostered to be on duty at the time of the burglary, they were. The respondent made no credible efforts to investigate the circumstances of the incident and took the decision to dismiss them all, including the complainant. I am satisfied, on balance, that this would not have happened to an Irish employee in similar circumstances as that worker would have understood the allegation against him/her and would have been able to articulate a defence to the charges, something the complainant was unable to do. Consequently, I find that the complainant has established a prima facie case of less favourable treatment on grounds of race contrary to the Acts and the burden shifts to the respondent to rebut the inference raised. I further find that the respondent has failed to discharge that probative burden and the complainant is therefore entitled to succeed with this element of his complaint.
6. DECISION OF THE EQUALITY OFFICER
6.1 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 -
(i) the complainant has failed to establish a prima facie case of discrimination 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 related to a written contract of employment,
(ii) the respondent discriminated against the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 200 and contrary section 8 of those Acts in respect of the provision of health and safety training and documentation,
(iii) the respondent dismissed the complainant in circumstances amounting to discrimination 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.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2008 I order that the respondent pay the complainant the sum of €8,500 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
31 December, 2009