Equality Officer’s Decision No: DEC-E/2009/057
Parties
Zilys and Volkovas
(Represented by Richard Grogan and Associates – Solicitors)
And
Barnmac Contracting Ltd
File No:: EE/2005/345 & EE/2005/367
Date of issue 7 July, 2009
TABLE OF CONTENTS
SECTION PAGE
Dispute 2
Background 2
Summary of Complainants’ Case 2
Summary of Respondent’s Case 3
Conclusions of the Equality Officer 4
Decision 8
Headnotes:Employment Equality Acts, 1998 and 2004 –Employment Equality Acts, 1998 – 2008 - discriminatory treatment – conditions of employment – race – burden of proof – less favourable treatment.
1. DISPUTE
This dispute involves claims by Mr. Arvydas Zilys and Mr. Mindaugas Volkovas, who are Lithuanian nationals, that they were discriminated against by the respondent in respect of their conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts.
2. BACKGROUND
2.1 The complainants were employed by the respondent as a Carpenter and Plasterer respectively between June and September, 2005. They contend that during their period of employment they were treated less favourably on the basis of their Lithuanian nationality as regards their conditions of employment.
2.2 The complainants referred complaints under the Employment Equality Acts, 1998 to 2004 to the Equality Tribunal on 17 October, 2005 and 28 October, 2005 respectively. In accordance with her powers under the Acts the Director delegated the complaints 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 complaints commenced on 4 July, 2008, the date they were delegated to me. Difficulties arose in respect of acquiring postal details for the respondent so as to ensure it was on notice of the complaints. A Hearing of the complaints took place on 5 June, 2009, at which time I was satisfied that the respondent was on notice of the complaints. The respondent neither attended nor was it represented at the Hearing.
3. SUMMARY OF COMPLAINANTS’ CASE
3.1 The complainants, who are Lithuanian nationals, commenced employment as a Carpenter and Plasterer respectively with the respondent on 13 June, 2005. They worked at a site in West Dublin for their three months of employment – and they left of their own volition sometime in September, 2005. They state that a number of Labourers were also employed on the site – all of whom were Eastern European. They add that there were no Irish employees on the site. The complainants state that that they received no written contract or terms of employment (although they state they signed contracts in early June, 2005) and contend that this constitutes unlawful discrimination of them on grounds of race contrary to the Acts. They contend 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. The complainants submit that the recent Labour Court Decision in Watters Garden World Ltd v Iurie Panuta [2] endorses the findings in the Goode Decision on this issue. In the course of the Hearing the complainants were unable to confirm whether or not the respondent had provided any of the other employees engaged at the same time as them with a contract of employment or other documentation.
3.2 The complainants state that the respondent failed to provide them with (i) a health and safety statements in a language which they could understand and (ii) any form of health and safety training as required by health and legislation and they submit that this failure constitutes less favourable treatment of them on grounds of race, contrary to the Acts. They seek to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete [3] and the Labour Court Decision in Watters Garden World Ltd v Iurie Panuta[4] in this regard. In the course of the Hearing the complainants confirmed that none of their colleagues received health and safety documentation or training. The complainants further state that the respondent failed to inform them of their entitlement to breaks and rest periods. They submit that there is an obligation on the respondent to do so and to ensure that employees take rest periods as provided by the relevant legislation and this failure constitutes less favourable treatment of them.
3.3 In conclusion, it was submitted on behalf of the complainants that Non-Irish employees are in a more vulnerable situation as regards their employment rights as compared with Irish employees. It is submitted that the respondent’s non-compliance with other employment protection legislation supports the complainants’ assertion that they were treated less favourably on grounds of their nationality. In this regard the complainants seek to rely on the Decision of the Labour Court in A Company v A Worker [5] and adds that an Irish employee would either have not been treated in similar fashion or would not have tolerated it and known where to go to seek appropriate assistance.
4. SUMMARY OF RESPONDENT’S CASE
The respondent did not attend, nor was it represented at the Hearing, in fact it did not engage with the Tribunal at any level following referral of the complaint.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent discriminated against the complainants on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts as regards their conditions of employment. 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 complainants at the Hearing.
5.2 Before proceeding to the substantive aspects of this complaint, I must deal with an issue of a preliminary nature. The complainants each referred three separate complaint forms in respect of three different respondents – (i) Barnmac Contracting Ltd. (ii) Jason Rogers and (iii) Trevor Rogers. The two latter respondents are listed as Directors of the first one in the Companies Registration Office. I am satisfied that the complainants entered into contracts of employment with Barnmac Contracting Ltd (although they were unable to state at the Hearing which of the Directors signed the document). I am assisted in this conclusion by the fact that a cheque which the complainants received in respect of their employment was drawn on the account of Barnmac Contracting Ltd. Section 77(4) of the Employment Equality Acts, 1998 and 2004 defines respondent, inter alia, as the person who is alleged to have discriminated against the complainant. Having regard to the circumstances in the instant case I find that Barnmac Contracting Ltd. is the correct respondent for the purposes of this complaint.
5.3 Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that discrimination shall be taken to occur where “on any of the discriminatory grounds in subsection (2) …. a person is treated less favourably than another person is, has been or would be treated.”.
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 complainants must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because they are Lithuanian.
5.4 Section 85A of the Employment Equality Acts 1998 and 2004 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 complainantdoes not discharge the initial probative burden required of him his case cannot succeed.
5.5 The first issue raised by the complainants relates to the respondent’s failure to furnish them with written contracts 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 complainants submit that the Decision of this Tribunal in 58 Complainants v Goode Concrete[6]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. The complainants further submit that the Labour Court Watters Garden World Ltd v Iurie Panuta[7] endorses the findings in the Goode Decision. The complainants are however, mistaken in this assertion. This Tribunal’s Decision in the Panuta case covered allegations of discriminatory treatment and victimisation. At the outset of the Appeal Hearing in the Labour Court the respondent accepted that it had discriminated against the complainant and the Court’s only role on that issue was to decide on the question of whether or not the quantum of compensation awarded by the Equality Officer for the discriminatory treatment was excessive. Consequently, the Court merely affirmed the findings of the Equality Officer on that issue.
5.6 In the instant case the complainants confirmed in the course of the Hearing that the respondent employed a number of other people during his period of employment and that these employees were Eastern European. They were unable to say if these employees received either a written contract of employment or written terms of employment from the respondent. Consequently, the complainants have failed to establish facts from which it could be inferred that they suffered less favourable treatment in comparison with those employees.
5.7 The complainants makes a similar submission as regards the respondent’s failure to furnish them with health and safety statements and health and safety training as they made in respect of that element of their complaints 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. In 58 Complainants v Goode Concrete[8] this Tribunal held that in fulfilling this requirement an employer risked a finding of less favourable treatment under the employment equality legislation if in circumstances where it provided information, instruction or training to employees it did not provide that information, instruction or training to non-Irish employees in a language which they could understand. In the instant case the complainants confirmed that none of their colleagues received a health and safety statement or training from the respondent. Consequently, the complainants have failed to establish facts from which it could be inferred that they suffered less favourable treatment in comparison with those employees. In addition, having carefully considered the arguments advanced on their behalf, I am not satisfied, on balance, that the respondent would have treated an Irish employee differently in a similar fashion.
5.8 The third element of the complainants’ complaints concerns breaks and rest periods and they submit that there is an obligation on the respondent to bring those entitlements to their attention and thereafter to ensure they take them. Issues surrounding hours of work and rest breaks are matters covered by the Organisation of Working Time Act, 1998 and this Tribunal has no jurisdiction under that statute. Whilst the Labour Court has previously expressed what it considers an employer’s obligations under that Act, any departure from the Court’s interpretation by an employer cannot automatically be regarded as less favourable treatment under employment equality legislation. The complainants stated at the Hearing that they took morning and lunch breaks – as did others on the site. They also confirmed that they exercised significant discretion as to their starting and finishing hours because the site was not supervised and they worked as and when materials were available to them – which could be erratic – and that there were occasions when they were on site and could not work at all because there were no materials. They added that other employees worked along similar lines. In the circumstances I am not satisfied that the complainants have established a prima facie case of discrimination in relation to this element of their complaints.
5.9 It is submitted on behalf of the complainants that Non-Irish employees are in a more vulnerable position as regards employment rights as compared to the indigenous workforce. It is further submitted that the respondent was predisposed to treating the complainants in a discriminatory fashion because of their Lithuanian nationality and that it would not have treated an Irish employee in the same manner. In support of this assertion the complainants seek to rely on the Labour Court Decision in A Company v A Worker[9].Section 6(1) of the Acts permits a comparison with a hypothetical comparator and the complainant submits that the Tribunal should compare his situation with a hypothetical Irish employee. I would not disagree with the assertion that Non-Irish employees can be placed in a more vulnerable position than Irish employees as regards employment rights and I can also accept that in certain circumstances the failure of a employer to comply with a range of employment rights’ legislation may constitute a fact, although not necessarily of itself, from which discrimination could be inferred. This was what the Labour Court held inA Company v A Worker[10]. However, in that case the circumstances were considerably different to those at issue in the instant case. The complainant was not an EU citizen and was faced with serious consequences as regards her legal status with her work permit. It was her first job in Ireland and she was effectively left with the options of taking the job offered to her by the respondent or returning to her own country – in circumstances where she had incurred considerable costs to come to Ireland. In the instant case the complainants, as EU citizens, had no such restrictions placed on them and were free to seek alternative employment if they wished. I further note that at the relevant time they had resided in Ireland for four years and had worked in their respective trades on other sites. In the circumstances I would have expected they should have had a reasonable understanding of their rights and where to seek advice and assistance if they were in doubt. Having carefully considered this argument and the evidence of the complainants I am not satisfied that they have established a prima facie case that the respondent would have treated an Irish employee differently in similar circumstances.
5.10 Finally, I note the comment of the Equality Officer in a recent Decision Darguzis v Lough Corrib
Engineering Ltd [11] and Zubrikas v Vaidas Ltd (in Liquidation) [12] as follows – “throughout this case the assertion has been made that where an employee is treated in a manner perceived to be less than ideal and where there is a difference in race there is automatically a prima facie case of discrimination. I am satisfied that this is not an accurate reflection of the caselaw as it currently stands, which in my view requires evidence of a difference in treatment.”. I would concur with this view and comment that in the instant case the complainant has, in essence, made similar assertions and has failed to establish facts from which it could be inferred that he was subjected to a difference in treatment.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of these complaints and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that the complainants have 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 and 2004 and contrary to section 8 of those Acts in respect of their conditions of employment and their complaints therefore fail.
_______________________________________
Vivian Jackson
Equality Officer
7 July, 2009