THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-038
PARTIES
Mr. Evaldas Darguzis
(represented by Claire Bruton BL instructed by
Richard Grogan & Associates, Solicitors.)
and
Lough Corrib Engineering Ltd., (in liquidation)
File Reference: EE/2006/067
Date of Issue: 4th June 2009
Keywords - Employment Equality Acts 1998 to 2008 – Discriminatory Treatment - Discriminatory Dismissal – Race – Redundancy – Prima Facie case – difference in treatment
1 Claim
1.1 The case concerns a claim by Mr. Darguzis, a Lithuanian national, that the respondent discriminated against him on the race ground based on his nationality in relation to his conditions of employment when it failed:
· to provide him with a written contract of employment,
· to provide him with a note of his grade as required by the relevant Registered Employment Agreement (REA),
· to provide him with payslips as required under the Payment of Wages Act,
· to arrange his membership of a union as required by REA,
· to apply fair procedures to his dismissal and
· to pay him the appropriate pay rate in accordance with the REA.
A claim was also made in relation to a collective agreement and for equal pay.
2 Background
2.1 The complainant was employed as a construction site labourer
2.2 Mr. Darguzis referred this claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004 on 6th March 2006. In accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Bernadette Treanor, 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. The date of delegation was 29th August 2008 and I began my investigation on that date. Following initial correspondence to the respondent and its representative (liquidator), all of which was ignored, a hearing of the claim took place on 6th April 2009. The respondent, having been notified, did not attend the Hearing.
2.3 When the Hearing was opened the complainant was requested to clarify the claim before the Tribunal. Reference was made to the issues mentioned in paragraph 1 above and to discriminatory dismissal. Following some discussion the claims relating to a collective agreement, to the enforcement of an REA and for equal pay were withdrawn. The claim of discriminatory dismissal was also withdrawn but not the claim relating to the failure to apply fair procedures to the dismissal. The claim that remained was one of discriminatory treatment in relation to conditions of employment.
2.4 An interpreter was provided for the purposes of the hearing but it became clear that the complainant’s level of English was good.
3 Summary of the Complainant’s Case
3.1 The complainant stated that this was his first job in Ireland. He began working as a labourer but after a month he was doing everything such as laying pipes and foundations. The respondent was a sub-contractor on a construction site in Tallaght, Dublin and was involved in doing the groundworks around the house building. The numbers employed on site at any one time by the respondent varied from two to six or seven. Only two of these were foreign nationals and the remainder were Irish.
3.2 The complainant stated that he received neither documents nor training when he began working. He undertook the Safe Pass course himself. His salary was €400 per week and after he queried this it was raised to €450 per week. He was not given any payslips. He asked the respondent to arrange a bank account for him as he was paid by cheque and although he was promised that this would happen it never did. He was never given a straight answer and was told ‘next week’. He used his brother’s bank account as he could not open an account without a payslip. In addition, without a payslip he was unclear as to his tax position. When asked at the Hearing if the Irish employees got payslips the complainant stated that he did not know. He said that they got envelopes but he could not know what was inside. He was likewise unaware if the respondent had organised bank accounts for the Irish workers.
3.3 The complainant was concerned that he was being paid lower than usual rates and asked to be given the minimum rate. Hs stated that he was unaware of the REA but that another worker was being paid €800 while driving a digger. When asked what was the nationality of the digger driver the complainant stated that he was Lithuanian. The complainant asked for another raise but he did not receive one. He asked others what they were earning and was told that one was getting €550 per week.
3.4 On 13th January the complainant was given a payment by his boss and told he was fired and would have to leave. He was given a few days for this.
3.5 The complainant received his P45 and P60 two to three weeks later.
3.6 The complainant’s representative stated that there are particular difficulties for foreign workers. Irish workers in similar circumstances would have been aware of their rights. She stated that evidence of discrimination can be inferred from the non-implementation of legislation by the employer and because the complainant was not given any documents in relation to his employment rights. She stated that the appropriate comparator in this case is a hypothetical Irish comparator who would have been aware of his rights and whom the employer would not have treated as he had treated the complainant. The representative stated that the complainants rights in relation to tax and the REA were such important rights that this case comes within the dicta of the Labour Court Recommendation Campbell Catering Ltd. V Aderonke Rasaq EED048. She also stated that the instant case was on all fours with the case addressed in Labour Court Recommendation A Company and A Worker, EED024. Reference was made also to paragraph 5.19 of Equality Officer Decision Golovan v Porturlin Shellfish Ltd. DEC-E2008-032.
4 Summary of the Respondent’s case
4.1 The respondent did not respond to me or the Tribunal at any time during my investigation.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether the complainant was less favourably treated in relation to his conditions of employment in terms of section 6(2)(h) and section 8(1)(b) of the Employment Equality Acts, 1998 and 2004. It is alleged that he was discriminated against when he was not provided with payslips, was not granted assistance with opening a bank account, not informed of his REA grade, not given a written contract, and was not subject to fair procedures in relation to his dismissal.
5.2 I note that another Lithuanian working for the respondent was paid €800 approximately per week suggesting that it is moot whether the complainant’s nationality was the reason for his rate of pay. However, the Tribunal does not enforce REAs or any requirements included in them. In that regard I note the Determination PW92/2007 where the Employment Appeals Tribunal indicated that the Payment of Wages Act 1991 did not confer jurisdiction on the Tribunal to implement REAs. Likewise, the Employment Equality Acts 1998-2008 do not confer jurisdiction for the enforcement of REA’s on the Equality Tribunal. Any issues arising in relation to the enforcement of aspects of the construction industry REA will not be addressed further.
5.3 The provision of a written contract, as distinct from written terms of employment, is not a statutory requirement and will not be addressed further.
5.4 The burden of proof required from the complainant is detailed in section 85A of the Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination , it is for the respondent to prove the contrary. Detailed application of this arrangement may be found in Mitchell v Southern Health Board [2001] ELR201.
5.5 In Ntoko v Citibank EED045 the Labour Court stated that the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof. In Campbell Catering and Aderonke Rasaq, EED048, the Labour Court applied the doctrine from Glasgow City Council v Zafar [1998] 2 All ER 953 which states that where there is a difference in treatment and a difference in race there is prima facie evidence of discrimination and it is for the respondent to provide a non-discriminatory explanation. The Labour Court in Campbell Catering went on to find that the respondent had treated the complainant differently, that is, less favourably when it did not afford her fair procedures in the investigation of the allegations against her. In other words, the Court clearly established a difference in treatment.
5.6 In the Ntoko case mentioned above, the Court also clearly established a difference in treatment as follows: “The complainant has established as a fact that he was treated differently than other employees of the respondent who made personal telephone calls and who are of a different racial origin”.
5.7 In my view the complainant has failed the first part of the test established in the Zafar case in that he has not established there was a difference in treatment in relation to him. The complainant’s representative stated that the appropriate comparator is a hypothetical Irish employee. I have no hesitation in using a hypothetical comparator in appropriate situations such as where it is shown that the existing potential comparators are unsuitable for one reason or another. However, in the instant case there were up to four non-Lithuanian employees working for the respondent on the same site at any one time and no reason has been adduced by the complainant as to why they were not suitable as comparators. A complainant must establish a difference in treatment and in relation to the receipt of payslips, and other conditions of employment, it seems to me that the existing employees are the appropriate comparators. It is not sufficient, in my view, to ignore existing comparators and assert that a hypothetical Irish employee would not have been treated in the same manner by the respondent. This could remove the necessity to present evidence in support of a claim. In any event, it was asserted that the four employees were Irish and therefore the arguments raised by the complainant’s representative in respect of a hypothetical Irish comparator apply equally to them. In the absence of any evidence I find that the complainant has failed to establish a difference in treatment in comparison with the comparators. Any failure to provide payslips, in the absence of a difference in treatment, has a remedy in the Payment of Wages Act.
5.8 The complainant stated that he received his taxation documents two or three weeks after his dismissal. In fact his P60 is dated 14th February 2006, one month after his dismissal. It was submitted by the complainant that the instant case was similar to Golovan v Porturlin Shellfish Ltd. DEC-E2008-032 which applied the test described in the penultimate paragraph of the Campbell Catering Labour Court Recommendation. However, while the date of issue of the tax forms in this case is far from ideal it is incorrect to suggest that the case is similar to Golovan where there was a delay of two years in issuing the documents. I find that neither Decision DEC-E2008-032, nor the Campbell Catering test applied in it, are directly relevant to this case.
5.9 The complainant’s representative also suggested that this case was on all fours with Labour Court Determination A Company and a Worker, EED024 relating to a Russian National. In that case it was suggested that an indigenous worker in circumstances similar those being complained of would be in a better position to seek support. In the complainant’s situation the Court found that those options did not exist. “It was either return to her country of origin (bearing in mind that she had sought to leave her country and committed substantial resources to bring it into effect) or take up the job offer.” However, the circumstances are entirely different from the instant case. The complainant in this case is a Lithuanian national and an EU citizen. He did not need a work permit and was not therefore tied to a specific job. I am satisfied that Determination EED024 is not directly relevant to this case.
5.10 The claim of discriminatory dismissal was not included on the complaint form and it was not mentioned in the submission. I am satisfied that the respondent was never on notice as to a claim of discriminatory dismissal. What was mentioned in the submission was the respondent’s failure to apply fair procedures to the dismissal and the complainant was at pains to pursue this aspect of the claim. The complainant’s representative included the failure to provide fair procedures in relation to dismissal with the overall claim of discrimination in relation to conditions of employment. No evidence has been presented as to the reason for the dismissal. It is noted that the respondent went into liquidation six months later. There is no suggestion that this dismissal arose from a disciplinary issue where the application of fair procedures or otherwise often arises. Nor is there any suggestion that there was a discriminatory selection for redundancy. As mentioned above in 5.5 the finding in Campbell Catering and Aderonke Rasaq, EED048 was that there was a difference in the application of procedures relating to the dismissal. No evidence of such a difference has been presented in this case. However, on the basis that I have found above that the respondent was never on notice of a claim of discriminatory dismissal in this case, and since the claim relating to discriminatory dismissal has been withdrawn, I am satisfied that the application or non-application of fair procedures to the complainant’s dismissal is not before me for decision.
5.11 Throughout this case the assertion is 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. As no such difference has been established in this case I find that the treatment complained of was not discriminatory on the grounds of the complainant’s nationality .
5.12 I find that the complainant has failed to establish a prima facie case of discrimination on the race ground based on his nationality in relation to his conditions of employment.
6 Decision, DEC-E2009-038
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the complainant has failed to establish a prima facie case of discrimination and his case must therefore fail.
Bernadette Treanor
Equality Officer
4th June 2009