THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-039
PARTIES
Mr. Arturas Businkas
(represented by Peter Leonard BL instructed by
Richard Grogan & Associates, Solicitors.)
and
Eupat Ltd. (in liquidation)
File Reference: EE/2007/405
Date of Issue: 4th June 2009
1 Claim
1.1 The case concerns a claim by Mr. Businkas, 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 treat him as they would an indigenous worker in relation to his dismissal
· to pay him the appropriate pay rate in accordance with the REA, and
· to pay him the appropriate overtime payments in accordance with the REA.
The essence of the claim is that the complainant was not treated consistently with how an Irish worker would be treated in similar circumstances. The claim form also alleged harassment, victimisatory dismissal and discriminatory treatment in respect of access to employment.
2 Background
2.1 The complainant was employed as a construction site labourer with the respondent from 12th June 2006 to 24th April 2007.
2.2 Mr. Businkas referred this claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004 on 7th August 2007. 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 16th March 2009 and I began my investigation on that date. Following initial correspondence to the respondent and its representative (liquidator) a hearing of the claim took place on 19th May 2009. The High Court appointed Liquidator attended the hearing on behalf of the respondent.
2.3 When the Hearing was opened the complainant was requested to clarify the claim before the Tribunal. Following some discussion the claims included in the complaint form relating to access to employment, harassment and victimisatory dismissal were withdrawn. The claim that remained was one of discriminatory treatment in relation to conditions of employment and training in addition to discriminatory dismissal.
3 Summary of the Complainant’s Case
3.1 The complainant stated that he had worked previously in Ireland in the construction sector and had undertaken the Safe Pass course. He began working with the respondent on 12th June 2006. He stated that he was the only Lithuanian on the site. There was another non-national whom he believed to be Romanian and the rest of the respondent workforce was Irish.
3.2 The complainant stated that he received neither documents nor training when he began working. As he did not receive his terms of employment he could not know what procedures or rate of pay were appropriate to him. His salary averaged at €500 per week. This was not the appropriate rate for the complainant in accordance with the REA. He was given four payslips during his period of employment and was only able to keep track of payments by referring to his bank statements. He was initially paid by cheque for the first few weeks and thereafter his wages were paid directly into the bank for him.
3.3 While he initially worked as a general labourer he was assigned to work on ceilings and partitions after roughly one month. His supervisor told him that he would buy the appropriate tools for him to undertake this work. The complainant asked about the purchase of the tools between three to five times. On one occasion the response he received was that this might not be advisable as there may not be any work for him. The complainant was unable to indicate when this comment was made to him.
3.4 The complainant stated that he was not given any holidays. When questioned about other workers getting holidays he replied that he did not remember but thought they were working when he was.
3.5 Since the complainant does not know the reason for his dismissal he cannot know if he has been singled out. It was suggested that the dismissal may have been because he asked about the purchase of the tools.
3.6 The complainant cannot be sure when he was told about his dismissal but he thinks it took place on the Wednesday or Thursday of the week he finished. He worked until the Friday of that week. He stated that he was given no explanation for the dismissal but he was informed that if they needed him again they would contact him.
3.7 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. He 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. Caselaw submitted in support of the complainant’s claim included Labour Court Recommendation Campbell Catering Ltd. V Aderonke Rasaq EED048, and Equality Tribunal decisions Khumalo v Cleary & Doyle Ltd. DEC-E2008-003, Ning Ning Zhang v Towner Trading DEC-E2008-001, 58 named Complainants v Good Concrete DEC-E2008-020 and Golovan v Porturlin Shellfish Ltd. DEC-E2008-032.
4 Summary of the Respondent’s case
4.1 The Liquidator appointed by the High Court appeared for the respondent as a courtesy to the Tribunal. She had hoped that a director of the respondent company would also attend but this proved impossible. She could only offer one piece of information relating to the case. Based on the respondent’s P35 for 2007 the respondent company dismissed four people in total when the complainant was dismissed.
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, not treated in accordance with the industry REA, not given a written contract, and in relation to his dismissal.
5.2 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. Whether or not the alleged failure to provide the complainant with his terms of employment amounts to discrimination will be considered below in the general consideration of his conditions of employment.
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 approach may be found in Mitchell v Southern Health Board [2001] ELR201.
Conditions of Employment
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 accordance with their practice. 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 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 all of the other employees working for the respondent on the same site were of a different nationality 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 actual comparators and assert that a hypothetical Irish employee would not have been treated in the same manner by the respondent. In the absence of any evidence I find that the complainant has failed to establish a difference in treatment in relation to the actual comparators and has therefore failed the first part of the test established in the Zafar case. Any failure to comply with legislation or REAs, in the absence of a difference in treatment, has a remedy in the relevant enforcement provisions.
5.8 I find, on the balance of probabilities, 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.
Dismissal
5.9 The complainant asserted he may have been dismissed because he had asked when the respondent was intending to purchase tools for him. I do not accept this for two reasons. Firstly, the complainant was clear that it was his boss who had first raised the issue of providing tools. Secondly, the complainant was also clear that he was informed in response to one of his requests about the tools that it might not be advisable to purchase them as there might not be any work for the complainant in the future. In this regard I note that the respondent has subsequently gone into liquidation.
5.10 In addition, in this case a number of facts are of particular relevance.
· The complainant indicated that this was not his first employment in the sector in Ireland. He said that the respondent had provided him with his P45 as had other previous employers. Therefore he has some familiarity with the workings of the industry and the processes involved in dismissal.
· The Liquidator indicated that four people were dismissed on the date the complainant finished. This was not contested by the complainant. Therefore at least two of that four, based on the complainant’s own evidence, must have been Irish. I am satisfied therefore that this establishes that the reason he was dismissed was not connected to his nationality.
5.11 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 dismissal.
6 Decision DEC-E2009-039
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