The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2009-041
PARTIES
Edgars Grods
(Represented by Christina Ryan BL
instructed by Richard Grogan & Associates)
AND
Toker Developments Ltd
File reference: EE/2006/131 & EE/2006/271
Date of issue: 5 June 2009
1. DISPUTE
1.1 This dispute concerns a claim by Mr Edgars Grods that he was discriminated against by Toker Developments Ltd on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts 1998-2008 in relation to conditions of employment and a collective agreement in terms of sections 8(1)(b) and 9 of the Acts and that he suffered harassment and victimisation in terms of sections 14(A) and 74 (2) of the Acts.
1.2 The complainant referred his claims to the Director of the Equality Tribunal on 27 April 2006 and 24 July 2006 under the Employment Equality Acts 1998 and 2004. On 25 October 2007, in accordance with her powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, 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 which date my investigation commenced. Submissions were received from both parties. As required by Section 79(1) and as part of my investigation I proceeded to hearing on 5 February 2009. This hearing was adjourned as the complainant was unable to give evidence because of a lack of his poor English and no interpreter had been requested by his representative. The hearing re-convened on 27 March 2009 with an interpreter and final information was received on 15 April 2009.
1.3 The Respondent stated that they had gone into liquidation in February 2007 and clarification was received that an “administrator” had been appointed, rather than a liquidator. The respondent attended the hearing to give evidence.
2. SUMMARY OF THE COMPLAINANTS’ CASES
2.1 The complainant submits that he is a Latvian national who started working for the respondent from 11 July 2004. He worked as a Steel Fixer and submits that he did not receive a contract of employment and he should have received a statement certifying his grade and been paid the Craft Rate in accordance with the Registered Employment Agreement (REA) for the Construction Industry. He was paid €13 per hour, which rose to €14 per hour, which is around the general operative rate. Furthermore other workers of a different nationality (Lithuanian) received better pay than he did.
2.2 The complainant submits that he did not receive proper notification of overtime and was on most occasions not paid enhanced rates in accordance with the REA.
2.3 The complainant also submits that the respondent did not operate a check off system and he was not made a member of a union, entered into the pension scheme or sick pay scheme.
2.4 The complainant submits that he did not receive his leave entitlement during his employment.
2.5 The complainant submits that these breaches of his conditions of employment entitlements occurred because of his race.
2.6 The complainant submits that he was from time-to-time subjected to foul and abusive language by the owner of the respondent company and it was associated with his nationality. He submits that this amounts to harassment on the grounds of race.
2.7 The complainant submits that he was told by the respondent there was no more work for him and he left their employment on 10 February 2006. He made his first claim of discrimination in April 2006. In a telephone conversation with the complainant’s representative on 2 May 2006 the respondent stated that if the complainant had rung him looking for employment he would not have been taken on because he had taken proceedings against the respondent. The representative put this in writing to the respondent but he did not reply. The complainant submits that this comment amounts to victimisation.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denies the allegations of discrimination against the complainant. They submit they were unaware of the complainant’s previous experience and he was employed under the same conditions of employment as the vast majority of workers, whilst it was specialised work it did not require craftsmen. He worked as a “helper” and was initially paid €13 per hour and this rate rose to €14 per hour on 16 October 2005, both of which were around the REA rate for a Grade D operative. The respondent submits that the complainant was paid the same as the Lithuanian workers who were doing the same work. However, some of them received a travel payment as they travelled from Carlow to Dublin, which may have looked as if they were paid more. Also one of them was paid extra as a supervisor because of his experience and level of responsibility.
3.2 The respondent submits that it became clear when they met the complainant that he did not have very good English so his start was delayed by a day in order that the induction by the Health and Safety Officer could be translated for him by fellow workers.
3.3 The respondent agrees that they did not issue the complainant with a contract of employment but neither was any other employee. The respondent submits they assembled products that were manufactured off-site and did not consider themselves a building firm and were therefore not aware of the REA for the Construction Industry. The respondent submits that there was a miscalculation of the complainant’s holiday pay but when this was brought to their attention they recalculated the entitlement and paid the complainant the outstanding monies due.
3.4 The respondent submits that they became aware that some Irish lads were unpleasant to some of the non Irish employees at times so they told them to ‘ease off’. Eventually the Irish lads left. The respondent denies any personal harassment of the complainant.
3.5 The respondent submits that they told the complainant and the rest of the staff in January 2006 that the project was coming to an end and they should look for other work. The complainant was laid off in February 2006 with one week’s notice. The respondent told the complainant to ring him in a couple of weeks. If the next phase of the project had gone ahead some former employees would have been taken on again. However, it did not go ahead and the complainant did not contact the respondent looking for work.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant withdrew the allegation regarding a collective agreement at the hearing so I have to decide if the complainant suffered discriminatory treatment on the grounds of his race in terms of his conditions of employment and if he suffered harassment and victimisation.
4.2I will first look at the complaint of discrimination in the complainant’s conditions of employment.The complainant contends he was paid a rate close to the grade D rate under the REA, whereas he claims he should have received a Craftsman’s rate because of his previous experience and the responsible work he carried out. Furthermore, he was not employed in accordance with other provisions in the REA. The respondent contends that they did not consider it was bound by the REA for the Construction Industry. However, it is not for me for to decide if the respondent complied with the employment legislation; the complainant has recourse under the REA to another body if he considers the respondent did not comply with its provisions. Section 6 of the Acts makes it clear that the Equality Tribunal has to look at whether the complainant was treated less favourably than someone of a different race. The complainant has compared himself to a number of Lithuanian workers but the respondent provided evidence that they were received the same pay. The respondent delayed the complainant’s start for a day in order to ensure that he understood the Health and Safety training and at the hearing the complainant confirmed that he did receive Health and Safety training in English which was translated by fellow workers, who included a supervisor. I accept the respondent’s contention that they treated all their staff the same, regardless of race, in relation to pay and other conditions of employment.
4.3 The complainant gave no evidence in relation to harassment from Irish colleagues, so I must consider his claims against the owner of the respondent company. There a clear conflict in the portrayal of events between the complainant and the owner and on balance I accept the owner’s version of events and conclude that no harassment took place.
4.4 I will now look at the claim of victimisation. I accept the respondent’s evidence that the complainant was let go at the end of a job in February 2006 and was told to contact him in a couple of weeks to see if more work was available. The complainant did not contact the respondent looking for work. Then, in April 2006, the complainant made his claim for discriminatory treatment to the Equality Tribunal. Following this the complainant’s representative spoke to the respondent on 2 May 2006 and was told that he would not have re-employed the complainant because he had made this claim. The respondent did not refute the comments attributed to him and at the hearing confirmed that he would not re-employ the complainant because he had made his claim. In deciding whether this amounts to victimisation I have to consider section 74 (2) of the Acts which states:
“…..victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant, ……”. In themselves the comments made by the respondent amount to victimisation and I conclude that the respondent would have considered re-employing the complainant until he made his claim under the Acts. This amounts to “adverse treatment” in accordance with section 74 (2).
5. DECISION
I have investigated the above complainant and make the following decisions in accordance with section 79 of the Acts:
- the claim in relation to a collective agreement was withdrawn;
- that the respondent did not discriminate against the complainant in his conditions of employment contrary to S. 8(1)(b) of the Acts on the ground of race;
- that the complainant was not harassed;
- that the respondent did victimise the complainant and I therefore order the respondent to pay the complainant €1000 for victimisation. This award is not in the nature of pay and therefore not subject to tax.
_____________________
Hugh Lonsdale
Equality Officer
5 June 2009