DEC-E2009-061 - Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2008

Decision DEC – E2009-061

Karlis Kraulis, Tomass Penkuss, Andris Elvigs, Alijaga Kazimovas, Jurijs Nalivaiko, Kaspars Orinskis, Antanas Penkuss, Intars Vilums

(represented by Richard Grogan and Associates Solicitors)

Versus

Breffni Design Ltd. trading as NEM Engineering Ltd.

(represented by Ken Stafford Management Consultancy Services)

File reference: EE/2006/339,  EE/2006/357, EE/2006/370, EE/2006/373, EE/2006/397, EE/2006/398.

Date of issue:    22nd July 2009       

Keywords: Employment Equality Act, Discrimination, Race, Conditions of Employment, Victimisation

1.    Dispute

1.1 This dispute concerns complaints by eight complainants of non-Irish nationality (see Appendix for nationality of each complainant) against Breffni Design Ltd. [trading as NEM Engineering Ltd].  The complainants were employed by the respondent as production operatives in a steel manufacturing business. The complainants allege that during their period of employment they was discriminated against on the grounds of race in relation to access to training and their conditions of employment contrary to the Employment Equality Act 1998 (as amended) [hereinafter referred to as ‘the Act’]. All the complainants except Intars Vilums claim victimisation within the meaning of the Act. The complainants withdrew their complaint that the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment) was discriminatory prior to the Hearing.

1.2 Through their legal representative, the complainants referred their complaints under the Act to the Director of the Equality Tribunal on 26^th September 2006.  In accordance with her powers under Section 75 of the Act, the Director delegated the case on 12^th November 2008 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation.  Submissions were received from both parties and a joint Hearing was held on 11^th March 2009 as required by Section 79 (1) of the Act.  In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.

2.        Summary of the complainants’ case

2.1 The complainants submit that training by the respondent was inadequate and this is discriminatory on the grounds of race.

2.2 The complainants submits that the respondent breached the Safety, Health and Welfare Work Act 2005 by failing to provide health and safety material in a ‘form, manner and language that is reasonably likely to be understood by an employee’.  One of the complainants, Tomass Penkuss said that the workplace was unsafe as the welding workshop where he was employed contained too much smoke and that there were not enough protective screens.

2.3 The complainants maintain that they were not being paid for all the hours they worked as they were not paid for their travelling time.

2.4 All of the complainants, except Intars Vilums, claim victimisation. The complainants submit that they were dismissed when they initiated proceedings against their employer. The complainants submit that a threatening notice was issued to them on 3^rd October 2006:

To: All Employees

Re. various matters: Communication from the Company to employees

1.     Action by certain employees

You may or may not be aware that certain employees have raised issues with an outside advisor in relation to how this business operates. This type of matter should, in the first instance, be raised internally with Management. In the company handbook that we have issued to all employees, there is a Grievance Procedure which can be used by any employee, or group of employees, to raise any issue with the company. The Grievance Procedure also makes provision for referral of issues to an outside body such as the Labour Relations Commission. It is company policy that we will not deal with an outside body on any employee issue until the Grievance Procedure has been fully used.

2.     Registered Employment Agreements

The question has arisen as to whether the work that we do is covered by a Registered Employment Agreement. [These agreements are binding agreements that cover rates of pay and/or terms and conditions, in certain industries]

We have taken professional advice on this matter and it is clear that we are not covered by any registered agreement

3.     Business situation

The major work that we have been involved in (Liberty Homes) will be finishing in the near future. At the moment we do not have new business to replace this. This means that we will soon have to cut back on our employment. Rather than making people redundant immediately, we propose to implement a period of short-time working. This would probably mean that some employees would be able to claim Social Welfare benefit for the days of lay-off but this matter can not be controlled by the company and must be taken up directly with a Social Welfare office.

Over the next few days the company will finalise all details, and let employees know who is affected, and the rota that will be worked. I would also add that we would eliminate or minimise overtime working at this period so as to maximise the hours that can be offered to employees on short-time.

If any employee wishes to discuss the implications of this short-time working to their personal circumstances they should arrange to meet with me.

We will keep this matter under constant review and if there is not sufficient new work by the end of November 2006 we will have to consider redundancies at that stage.

4.     Installation Work

The company is reviewing its policy of offering an installation service in addition to this main manufacturing business.

It can be difficult to manage the requirement for installation work as it is variable. We are now of the view that it may be better to sub-contract such work to suitable installation specialists or simply deliver on-site and the clients to organise installation. We already supply structural steel products for client to install and we believe that it would be better for our business if we adopted this approach to all work. If we decide to go this route it would clearly have implications for employment in the company. We will keep employees fully abreast of the situation as it develops.

5.     Consultation

We would like to set up a small grouping of employees who would meet with management when there are issues to be disucessed. We would ask that employees put forward the names of three people who would form the employee representative committee.

___________

Neil Murtagh

The complainants submit that any reasonable person would see this as threatening and that complainants have a right to make a complaint under the Employment Equality Act.

2.5 The complainants submit that Campbell Catering Ltd. and Aderonke Rasaq is relevant in this case:

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, including the right to representation. 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 situation and is given appropriate facilitates 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.[1]

2.5 The other case cited was Five complainants v Hannon’s Poultry Export Ltd[2]. The complainants maintain that they were treated less favourably than a hypothetical Irish comparator (no Irish person was employed as a Production Operative during the period of the complainants’ employment) would have been treated.

3.     Summary of the respondent’s case

3.1 NEM Engineering Ltd was established in 2001. It manufactures fabricated steel products e.g. balustrades, gates etc.  During the complainants’ employment, some employees worked in the manufacturing facility in Lusk, County Dublin and the most of the remainder were employed as installers/drivers.

3.2 The respondent rejects the allegation that the complainants were treated less favourably because of their non-Irish nationality. The wage rates are submitted as evidence and, according to the respondent, show that there was no direct or indirect discrimination. Regarding the claim that the complainants did not receive training, the respondents submit that all employees in NEM Engineering Ltd. (including the complainants) received the training that was appropriate and necessary for their positions. The respondent state that there was no problem with the workmanship of any of complainants and none of the complainants ever indicated to their employer a training need. One of the Managers in NEM Engineering Ltd was Latvian as was one of the administrative employees. Both were fluent in English and Russian as well as their native language so the respondent submits that communication was not a problem in their business. Any document of significance was translated into Russian including their Grievance Procedure and the Employee Suggestion Scheme.

3.3 The respondent rejects the allegation that the complainants worked excessive hours. The respondent submits the average hours of the complainants in 2006 as evidence and all were within the limits of the Organisation of Working Time Act 1997.  NEM Engineering Ltd states that all overtime was paid.

3.4 Tomas Penkuss makes the complaint that he was forced to work in unsafe conditions. According to the respondent, NEM Engineering Ltd. has always taken their Health and Safety obligations seriously. Employees are given safety training to SafePass standard. This training was given in Russian. A copy of the Safety Statement (translated into Russian) was signed by all complainants. During the period of the complainants’ employment, a safety consultant was making mothly safety audit visits to the company. In relation to the complaint by Tomas Penkuss, the respondent submits evidence that this issue was dealt with promptly – a new fan was installed and extra screens provided.

3.5 In relation to the claim that the complainants received a notice that threatened dismissal (see Paragraph 2.4) the respondent submits that the notice that was sent to all employees. The respondent maintains that the notice was a reflection of the economic conditions at the time and all employees were entitled to be kept up-to-date with the implications of this on their employment. The respondent submits this information was specifically put in writing to avoid claims of victimisation.  In November 2006 there were twenty four people employed in the manufacturing and installation areas. In September 2007 there were ten people working in these areas. Business has failed to improve in the interim and at the time of the hearing there were 7 employed in those areas (all of whom are currently laid off). The respondent submits that it felt aggrieved that complainants did not approach management with whatever issues that they may have had in the first instance.

3.6 The respondent submits that none of the complainants were dismissed from their employment. Nor were they at any financial loss as result of them making a complainant to the Equality Tribunal. When a salary increase was applied, it was given to all employees including the complainants. Neither were any of the complainants subjected to any disciplinary action.

4.        Conclusions of the Equality Officer

Non-attendance of three complainants

4.1 I notified the parties of the date of the hearing, by registered post, on 15^th December 2008. I am satisfied that all reasonable efforts had been made to inform all eight complainants of the hearing. However, three complainants (Jurijs Nalivaiko, Kaspars Orinskis and Karlis Kraulis) did not attend the hearing. In the light of the foregoing and in accordance with Section 79(6) of the Act I issue the following decision.  As part of my investigation under Section 79 of the Act, I am obliged to hold a hearing.  I find that the  failure of  Juris Nalivaiko, Kaspars Orinskis and Karlis Kraulis to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased.  As no evidence was given at the hearing in support of the allegation of discrimination in relation to these three complainants, I conclude the investigation of their complaints and find against the complainants Jurijs Nalivaiko, Kaspars Orinskis and Karlis Kraulis.

4.2 In respect of the remaining five complainants (Tomass Penkuss, Alijaga Kiazmovas, Antanas Penkus, Intars Vilums and Andris Elvigs) there are three issues for me to decide:

(i) whether the complainants suffered discriminatory treatment in relation to their conditions of employment contrary to Section 8(1)(b) on the ground of race in relation to their pay and safety in the workplace

(ii) whether the complainants were treated less favourably on the ground of race regarding access to training contrary to 8(1)(c) of the Act

(iii) whether the complainants, except Intars Vilums, were victimised within the meaning of 74(2) of the Act.

4.3 Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that they suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

Conditions of Employment

4.4 Regarding the issue of pay (Paragraphs 2.3 and 3.3) where the complainants state that they worked excessive hours and were not paid overtime, from the evidence presented to me this does not appear to be the case. Furthermore, no evidence was adduced as to how the complainants were treated less favourably than a hypothetical Irish comparator.

4.5  In relation to providing health and safety material in a form, manner and language that is reasonably likely to be understood by an employee (Paragraphs 2.1 and 3.4), the respondent submitted a copy of the invoice detailing the translation of the Safety Statement into Russian. The engagement of a Safety Consultant predates the complaint to this Tribunal. Regarding the complaint by Tomass Penkuss that he was obliged to work in unsafe conditions, the respondent submitted contemporaneous correspondence to show that his issue was taken seriously and resolved. Therefore, I find that neither he nor the other four complainants were treated less favourably than an Irish employee would have been in the same situation.

Training

4.6 I accept the respondent’s contention that the complainants were not discriminated against on the ground of race regarding training (Paragraphs 2.1 and 3.2). When I asked the complainants at the hearing, none of the complainants identified a training need that was not met.

Victimisation

4.7 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant,  the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.

4.8 Claims of victimisation have to be taken seriously or otherwise Employment Equality legislation could be undermined. In the first paragraph of the notice to employees on 3^rd October 2006 (Paragraphs 2.4 and 3.5) the respondent state that ‘it is company policy that we will not deal with an outside body on any employee issue until the Grievance Procedure has been fully used’. Industrial relations best practice determines that grievances progress through a number of stages of a procedure before being referred to an external forum.[3]However, the complainants’ legal representative is correct in saying this is without prejudice to employees’ right to pursue complaints under the Employment Equality legislation separate to any local grievance procedure. Although the tone of the first paragraph is somewhat strident, I do not find the notice, in its entirety, constitutes victimisation within the meaning of the Act.

4.9 Now I will examine whether the complainants were treated adversely as a reaction to them initiating legal proceedings against the respondent. On 1^st November 2006, there were twelve people working in the manufacturing area. By 1^st September 2007 five people had been let go including one of the complainants. Of the seven that remained, one was the workshop foreman, three were certified welders and the other three were the most senior of the production operatives. There were twelve people employed as installers/drivers in November 2006. By September of the following year only three remained including one of the complainants (Jurijs Nalivaiko). Five of the nine let go were complainants. However, the evidence shows the laying-off was done in a transparent manner on a Last-In-First-Out basis. None of the complainants were let go between the date of lodging the complaint to this Tribunal (26^th September 2006) and 1^st November 2006. I am satisfied that the employment of the complainants with the respondent was terminated due to a downturn in business rather than as a reaction to them initiating a complaint under the Act.  Therefore the complainants have not established a prima facie case of victimisation within the meaning of the Act.

Decision

 I have concluded my investigation of the above complaints and hereby make the following decision in accordance with Section 79(6) of the Act. I find that

(i) Tomass Penkuss, Alijaga Kiazmovas, Antanas Penkus, Intars Vilums and Andris Elvigs were not discriminated against in relation to their conditions of employment contrary to Section 8(1)(b) on the ground of race in relation to their pay and safety in the workplace

(ii) Tomass Penkuss, Alijaga Kiazmovas, Antanas Penkus, Intars Vilums and Andris Elvigs were not discriminated on the ground of race regarding access to training contrary to 8 (1)(c)of the Act

(iii) Tomass Penkuss, Alijaga Kiazmovas, Antanas, Penkus, and Andris Elvigs werenot victimised within the meaning of 74(2) of the Act

(iv)  As Jurijs Nalivaiko, Kaspars Orinskis and Karlis Kraulis did not attend the hearing, no evidence of their discrimination was presented so their complaint must fail.

_______________
Orlaith Mannion

Equality Officer

22nd  July 2009

Appendix