THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009 – 063
PARTIES
Mr. Vilmantas Ganusauskas, Mr Leszek Zembrzowski, and Mr Tomas Guaizdauskas
(Represented by Richard Grogan & Associates, Solicitors)
and
All Purpose Stone Ltd (in liquidation)
File References: EE/2007/637
EE/2008/454
EE/2008/462
Date of Issue: 29th July 2009
Claim
1.1. The case concerns a claim by Mr Vilmantas Ganusauskas, Mr Leszek Zembrzowski, and Mr Tomas Gwaizdauskas, that All Purpose Stone Ltd. discriminated against them on the ground of their nationality, within the meaning of the race ground, contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, with regard to harassment, their conditions of employment, and discriminatory dismissal.
1.2. Mr Ganusauskas referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 4 December 2007. Mr Zembrzowski, and Mr Gwaizdauskas referred a complaint on 7 July 2008. On 16 March 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case 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 23 July 2009. Submissions were received from the complainant on 3 November 2008. No submission was received from the respondent, and no representative for the respondent, or the respondent’s liquidator, attended the hearing of the complaint.
Summary of the Complainants’ Written Submission
2.1. Mr Ganusauskas complains that he was not paid in accordance with the registered employment agreement for the construction industry; that he was forced to work excessive hours; that deductions from his wages were made; that he received no written contract of employment or health and safety information or training, and that he received no payslips.
2.2. Mr Zembrzowski complains that he was not paid in accordance with the registered employment agreement for the construction industry, that his terms and conditions of employment did not conform to the REA; that his tax affairs were not kept in order; that he received no written contract of employment or health and safety information or training, and that he received no payslips. He also complains of harassment, and that he was dismissed without proper procedures.
2.3. Mr Gwaizdauskas complains that he was not paid in accordance with the registered employment agreement for the construction industry, that his terms and conditions of employment did not conform to the REA; that his tax affairs were not kept in order; that he received no written contract of employment or health and safety information or training, and that he received no payslips. He also complains of harassment; and that he was dismissed without proper procedures.
Summary of the Respondent’s Written Submission
3.1. As noted above, no submission was received from the respondent.
Conclusions of the Equality Officer
4.1 The issue for decision in this case is whether the complainants were harassed, discriminated against, and discriminatorily dismissed as the case may be, on the ground of their nationality within the meaning of the Acts.
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.
4.3. Mr Zembrzowski did not appear at the hearing of the complaint. Accordingly, I find that he has not established a prima facie case in relation to any of the above complaints, and that his case therefore fails.
4.4. Mr Ganusauskas and Mr Gwaizdauskas are Lithuanian nationals. They are both qualified stonemasons, who worked for the respondent as bricklayers. Mr Ganusauskas worked for the respondent in this role from January to December 2007. Mr Gwaizdauskas worked for the respondent from November 2006 to May 2008.
4.5. I will address the complainants’ complaint of harassment first. In relation to this, I need to consider three different aspects of the evidence:
(a) Whether the complainants have established on the balance of probability that they were harassed on the ground of their nationality. This includes an evaluation as to whether the events the complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of harassment.
(b) Whether the respondent is vicariously liable for the harassment pursuant to S. 15 of the Acts.
(c) Whether the respondent took reasonable action to prevent harassment occurring in the workplace. This includes considering the extent to which the respondent was aware of the complainants’ experiences, to enable it to deal with the complainants’ complaint of harassment, and if it was aware, whether it took appropriate action to enable it to rely on the defence.
4.6. “Harassment” is defined in S. 14A(7)(a) of the Acts as any form of conduct related to any of the discriminatory grounds being conduct which … has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. S. 14A(7)(b) further states that such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.7. S. 14A(2) of the Acts states that it shall be a defence for an employer to prove that the employer took such steps as are reasonably practicable … to prevent the person from harassing the victim or any class of persons including the victim. In the case law that has developed on harassment, this is understood to include the development and implementation of a policy on dignity at work, bullying and harassment, and its implementation in accordance with the principles of natural justice and fair procedures.
4.8. Both complainants, that is, Mr Ganusauskas and Mr Gwaizdauskas, gave evidence that their harassment took the form of being screamed at: “You f***ing Pole!”, “You stupid Russian!” and similar phrases that linked demeaning swearwords with a randomly chosen Eastern European nationality, whenever they made a mistake in their work. According to both of them, this happened regularly throughout their employment with the respondent. It was either the owner of the respondent business who abused them in this manner, or his brother. Both of them gave evidence that they were not aware of any way in which to complain about their treatment. They further pointed out that since the abuse came from the owner or his brother, that they did not see how raising a complaint might have assisted them in stopping this behaviour.
4.9. While harassment was not a part of Mr Ganusauskas’s original complaint, I find that his clear evidence of being subjected to verbal abuse as described above gives me jurisdiction to investigate his possible harassment and make a finding on it, pursuant to Siobhan Long v. The Labour Court, Mairead Blackhall, and Powers Supermarkets Ltd t/a Quinnsworth, 1990 No 58 [HC Judicial Review, 25 May 1990], which established the right of an Equality Officer to consider cases before him or her under provisions of the relevant legislation that the complainant or the complainant’s representative have not sought to invoke, if it appears from the evidence that those provisions should be applied to the case at hand.
4.10. I am further satisfied that since harassment was a complaint of two of the three complainants (Mr Zembrzowski and Mr Gwaizdauskas), the respondent was on notice that the matter of harassment would be part of the Tribunal’s investigation, and that the respondent’s rights pursuant to The State (Irish Pharmaceutical Union) v. Employment Appeals Tribunal [1987 ILRM 36], in which the Supreme Court held that where a quasi-judicial body introduces any element into a case that has not been previously canvassed, parties must be afforded an opportunity to meet the case, are therefore not compromised. Furthermore, neither the respondent nor his liquidators have engaged with the investigation in any way, or sought to meet the case against the respondent up to and including the hearing of the complaint. Under the circumstances, I will proceed to investigate, and make a finding on, Mr Ganusauskas’s possible harassment without further notice to the respondent.
4.11. I found both complainants to be credible witnesses. I note in particular that during the hearing of the complaint, Mr Gwaizdauskas struggled to repeat the abusive phrases out loud, and that doing so was upsetting to him. I am satisfied that the complainants experienced verbal abuse as described, and that this verbal abuse constitutes harassment on the ground of race within the meaning of S. 14(7) of the Acts. I find the fact that the complainants’ harassers picked randomly chosen Eastern European nationalities to harass the complainants to be particularly demeaning, as it shows the harassers could not even be bothered to remember the complainants’ nationality properly.
4.12. I further find that the defence of S. 14(2) does not avail the respondent, not only because the case was uncontested, but also because I found the complainants’ evidence credible that it was the owner of the respondent business himself who was one of their harassers. This being the case, it is clear that no steps were taken by the respondent to prevent the complainants’ harassment at any time.
4.13. I now turn to the provision of health and safety information in a language the complainants would be able to understand. It was the complainants’ evidence that while both of them were skilled craft workers in possession of the FAS SafePass, site-specific health and safety information was given only in English. Mr Gwaizdauskas stated that this was no problem for him as his English was good enough to follow the instruction. This was confirmed at the hearing of the complaint, where I found that Mr Gwaizdauskas had good English. However, Mr Ganusauskas’s English at the hearing was rather basic. I am not satisfied that he would have been able to understand the health and safety instruction given in English during the time in which he was in the respondent’s employment. I therefore find that Mr Ganusauskas has established a prima facie case of less favourable treatment on the ground of race with regard to the provision of health and safety information in a language he was likely to understand, and that this has not been rebutted.
4.14. Turning to the provision of payslips or contracts of employment, it was the evidence of the complainants that to their knowledge, nobody working for the respondent received same. This is also supported by the Mr Ganusauskas’s submission, which refers to a submission the respondent made to the Rights Commissioners to the same effect. I therefore find that there is insufficient evidence to establish a prima facie case of less favourable treatment of the complainants on the ground of their nationality in these matters.
4.15. With regard to Mr Ganusauskas’s complaint of having to work excessive hours, it was submitted by his representative that the respondent demanded excessive hours from his workers because he hoped to earn a bonus premium for early completion of the building project the complainants were employed on. Again, I find there is insufficient evidence that excessive hours of work were demanded of Mr Ganusauskas on the ground of his nationality and that he has not established a prima facie case with regard to this aspect of his complaint.
4.18. With regard to Mr Gwaizdauskas’s complaint of discriminatory dismissal, Mr Gwaizdauskas stated that his employment with the respondent came to an end when one evening, without any prior warning, the owner of the respondent business told him to “F*** off”. There was no explanation of any kind as to why the complainant’s employment was terminated. When the complainant returned the next day to request his P45 form from the respondent, he was again told to “F*** off”, as described in paragraph 0above.
4.19. Looking at the stark circumstances of the complainant’s dismissal, I am satisfied that the respondent would not have terminated the employment of any of his Irish workers in the same fashion. I note that all Irish workers in the employment of the respondent’s were related to him and either his brothers or his nephews; however, the Acts do not provide for this kind of family relationship to be a defence for a respondent with regard to less favourable treatment in connection with any of the protected grounds. Furthermore, I am satisfied that even a hypothetical Irish employee who was not related to the respondent would not have been dismissed in the same manner, and that from all the available evidence, it appears that Mr Gwaizdauskas was the last remaining non-Irish national in the employment of the respondent at the time his dismissal took place. I am therefore satisfied that Mr Gwaizdauskas has established a prima facie case of discriminatory dismissal on the ground of his nationality which has not been rebutted.
Decision
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 Leszek Zembrzowski in his conditions of employment contrary to S. 8(1) of the Acts, and did not discriminatorily dismiss him contrary to S. 8(6) of the Acts, on the ground of his nationality pursuant to S. 6(2)(h) of the Acts.
(ii) The respondent discriminated against Mr Vilmantas Ganusauskas and Mr Tomas Gwaizdauskas in relation to their conditions of employment contrary to S. 8(1) of the Acts by not taking reasonable and practicable steps to prevent their harassment on ground of their nationality contrary to S. 14A(7) of the Acts;
(iii) The respondent did discriminate against Mr Vilmantas Ganusauskas in his conditions of employment contrary to S. 8(1) of the Acts by not providing him with health and safety information in a language he could understand, on ground of his nationality pursuant to S. 6(2)(h) of the Acts, but he did not discriminate against Mr Tomas Gwaizdauskas in this matter;
(iv) The respondent discriminatorily dismissed Mr Tomas Gwaizdauskas on the ground of his nationality pursuant to S. 6(2)(h) of the Acts, contrary to S. 8(6) of Acts.
In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent
(i) Pay Mr Vilmantas Ganusauskas €500 in compensation for non-provision of health and safety information in a language he was likely to understand, and €5000 in compensation for the effects of harassment.
(ii) Pay Mr Tomas Gwaizdauskas €5000 in compensation for the effects of harassment and €15,000 in compensation for his discriminatory dismissal.
These awards are in compensation for the distress experienced by the complainants in relation to the above matters, and are not in the nature of pay, and therefore not subject to tax.
________________________
Stephen Bonnlander
Equality Officer
29 July 2009