Equality Officer’s Decision No: DEC-E/2009/044
Parties
Zubrikas
(Represented by Richard Grogan and Associates – Solicitors)
And
Vaidas Ltd. (In Liquidation)
File No: EE/2008/185
Date of issue 9 June, 2009
Headnotes: Employment Equality Acts, 1998-2008 – sections 6, 8 and 77 - discriminatory treatment – conditions of employment – race- dismissal – burden of proof – less favourable treatment – prima facie case.
1. DISPUTE
This dispute involves a claim by Mr. Valerijus Zubrikas, who is a Lithuanian national, that he was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts
2. BACKGROUND
2.1 The complainant was employed by the respondent as a roofer’s mate between August and December, 2007. He contends that during his period of employment he was treated less favourably on the basis of his Lithuanian nationality as regards his conditions of employment. He also contends that he was dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Lithuanian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2007 to the Equality Tribunal on 31 March, 2008. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 25 March, 2009, the date the complaint was delegated to me and a Hearing of the complaint took place on 29 May, 2009. The respondent neither attended nor was it represented at the Hearing.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant, who is a Lithuanian national, commenced employment as a roofer’s mate with the respondent on 7 August, 2007. He states that during his period of employment he worked on approximately ten different construction sites throughout the country. He adds that during this time the respondent employed between 2/4 other employees. He states that all of these employees were Eastern European and as far as he was aware most of them were from Lithuania. The complainant states that that he received no written contract or terms of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He contends that following the Decision of this Tribunal in 58 Complainants v Goode Concrete [1] there is an obligation on an employer to provide employees with a contract of employment in a language which they understand. The complainant submits that the recent Labour Court Decision in Watters Garden World Ltd v Iurie Panuta [2] endorses the findings in the Goode Decision on this issue. In the course of the Hearing the complainant was unable to confirm whether or not the respondent had provided any of the other employees engaged at the same time as him with a contract of employment or other documentation.
3.2 The complainant states that the respondent failed to provide him with a health and safety statement in a language which he could understand and that this failure constitutes less favourable treatment of him on grounds of race, contrary to the Acts. He seeks to rely on the decision of this Tribunal in 58 Complainants v Goode Concrete [3] and the Labour Court Decision in Watters Garden World Ltd v Iurie Panuta [4] in this regard. In the course of the Hearing the complainant confirmed that he held a valid Safety Pass for the duration of his employment – he had completed the necessary course and assessment in advance of taking up employment with the respondent. He further confirmed that this Pass was an obligatory requirement to work on a construction site and that the Pass was checked regularly by Health and Safety inspectors on the site(s). The complainant adds that he received a health and safety induction talk at most of the ten construction sites he worked on, that these talks were sometimes given in Russian ( a language he speaks), that in some instances he was given documentation in Russian and on one occasion he was shown a health and safety film. He confirmed that the content of these talks were broadly similar and that he understood the instructions given to him.
3.3 The complainant contends that the Registered Employment Agreement (REA) for the Construction Industry entitles the complainant to join the Construction Workers’ Pension and Sick Pay Scheme. He states that he was never joined in such a scheme and that the respondent never brought this entitlement to his attention. It is submitted on his behalf that an Irish employee would be aware of the rights under the REA in respect of this Scheme and would have insisted on access to the Scheme. The complainant submits that the respondent’s failure to join him in this Scheme constitutes unlawful discrimination of him. In the course of the Hearing the complainant was unable to say whether or not any of the other employees engaged at the same time as him were joined in the Scheme.
3.4 The complainant states that he contacted the respondent by telephone on 3/4 January, 2008 to clarify where he was to report for duty after the Christmas holidays. He states that the respondent advised him there was no work for him and that he (the respondent) would keep him informed of the situation. The complainant states that he never resumed work for the respondent. He states that he was the only employee who was “let go” at this time and contends that one of the employees who was retained in employment (Mr. K) had commenced work with the respondent at least two weeks after he had done so. It is submitted on his behalf that this constitutes discriminatory dismissal of the complainant on grounds of race. It is further submitted that the termination of his employment constitutes summary dismissal as no fair procedures were followed by the respondent and no evidence has been adduced that a genuine redundancy situation existed at that time. The complainant seeks to rely on the Labour Court Decision in Rasaq v Campbell Catering Ltd [5] in support of his contention that his dismissal was discriminatory.
4. SUMMARY OF RESPONDENT’S CASE
The respondent did not attend, nor was it represented at the Hearing.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts as regards his conditions of employment and (ii) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the complainant at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998-2007 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”
Section 6(2) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins… “
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Lithuanian.
5.3 Section 85A of the Employment Equality Acts 1998 - 2008 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required of him his case cannot succeed.
5.4 The first issue raised by the complainant relates to the respondent’s failure to furnish him with a written contract of employment. In the first instance it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal. The complainant submits that the Decision of this Tribunal in 58 Complainants v Goode Concrete[6]places an obligation on an employer to furnish non-Irish employees with a contract of employment in a language which they understand. This is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes its employees with contracts of employment it constitutes less favourably treatment of non-Irish employees if the respondent provides them with a contract in English and not in a language which they can understand. Indeed the Equality Officer went on to say in that Decision that if an employer is not in a position to provide contracts in different languages it should at the very minimum ensure that the contents of the contract is explained to those employees and have them sign a document confirming that the contract had been explained to them. The complainant further submits that the Labour Court Watters Garden World Ltd v Iurie Panuta[7] endorses the findings in the Goode Decision. The complainant is however, mistaken in this assertion. This Tribunal’s Decision in the Panuta case covered allegations of discriminatory treatment and victimisation. At the outset of the Appeal Hearing in the Labour Court the respondent accepted that it had discriminated against the complainant and the Court’s only role on that issue was to decide on the question of whether or not the quantum of compensation awarded by the Equality Officer for the discriminatory treatment was excessive. Consequently, the Court merely affirmed the findings of the Equality Officer on that issue.
5.5 In the instant case the complainant confirmed in the course of the Hearing that the respondent employed between 2/4 other people during his period of employment and that these employees were Eastern European. He was unable to say if these employees received either a written contract of employment or written terms of employment from the respondent. Consequently, the complainant has failed to establish facts from which it could be inferred that he suffered less favourable treatment in comparison with those employees. Section 6(1) of the Acts permits a comparison with a hypothetical comparator and the complainant has submitted that the Tribunal should compare his situation with a hypothetical Irish employee. Having carefully considered this argument and the evidence of the complainant I am not satisfied that the complainant has established a prima facie case that the respondent would have treated an Irish employee differently in similar circumstances.
5.6 The complainant makes a similar submission as regards the respondent’s failure to furnish him with a health and safety statement as he made in respect of that element of his complaint concerning a contract of employment. The Safety, Health and Welfare at Work Act, 2005 places certain requirements on employers as regards the health, safety and welfare of their employees in the workplace. Complaints of alleged breaches of those obligations rest with for a forum other than this Tribunal. Amongst these obligations is the provision of information, instruction and training of employees in respect of matters covered by the statute. In 58 Complainants v Goode Concrete[8] this Tribunal held that in fulfilling this requirement an employer risked a finding of less favourable treatment under the employment equality legislation if it did not provide the information, instruction or training in a language which non-Irish employees could understand. In the instant case the complainant confirmed that he was required to hold a valid Safety Pass at all times during his employment and that this Pass was checked regularly on each of the ten construction sites he worked at during his period of employment. He also stated that at most of these sites he received induction training in Russian – a language he is fluent in - and in some cases he received written documentation. He also confirmed that he understood the instruction given to him. In the circumstances I find that the complainant has failed to establish facts from which it could be inferred he was treated less favourably on grounds of nationality as regards this aspect of his complaint.
5.7 The third element of the complainant’s claim concerns his contention that Registered Employment Agreement (REA) for the Construction Industry entitles him to join the Construction Workers’ Pension and Sick Pay Scheme, that he was never joined in such a scheme and that the respondent never brought this entitlement to his attention. He submits that this constitutes discriminatory treatment of him on grounds of race contrary to the Acts.The Industrial Relations Act 1946 (as amended), provides the Labour Court with jurisdiction on any question as to the interpretation of an REA or its application to a particular person and this Tribunal has no authority in those issues. However, allegations that the terms of an REA are being applied in a discriminatory fashion are proper for investigation by this Tribunal. The complainant is unable to say whether or not the other employees engaged by the respondent during his period of employment were joined in the Scheme. Therefore he has failed to establish a prima facie case of discrimination as regards those employees. He further submits that the respondent would not have treated a hypothetical Irish employee in the same manner, premised on the assertion that an Irish employee would be aware of his/her entitlements. Having carefully considered the arguments advanced on this point I cannot, on balance, accept the proposition. Just because an employee is aware of his/her does not mean that an employer would be any more/less likely to treat an Irish employee differently in the circumstances.
5.8 The complainant contends that he was dismissed in circumstances amounting to discrimination on grounds of race contrary to the Acts. He states that when he contacted the respondent by telephone on 3/4 January, 2008 he was informed that there was no work for him and that the respondent would keep him informed of the situation, although he heard nothing further from the respondent on the matter. In the course of the Hearing he identified three employees, all of whom were Lithuanian, who were kept on by the respondent. The complainant is certain that one of these employees (Mr. K) commenced employment with the respondent at least two weeks after the complainant started working there. In the absence of any contradictory evidence on these points I accept the complainant’s version of events. It is submitted on the complainant’s behalf that the respondent’s failure to follow fair procedures and its summary dismissal of the complainant, constitute unlawful discrimination of him. In this regard it seeks to rely on the Labour Court Decision in Rasaq v Campbell Catering Ltd[9]. In addition, it is contended on his behalf that no genuine redundancy situation existed at that time. The Rasaq case is not relevant in this instance. The complainant contends that there was no genuine redundancy situation in existence. However, I note his evidence that the reason given by the respondent in the course of their telephone conversation in early January, 2008 was “that there was no work for him”. I cannot therefore accept his assertion on this point. Finally, he contends that he was not the last employee in, so he should not have been the first out. Whilst this may have been the case this Tribunal is not dealing with an allegation of unfair dismissal, it is dealing with one of discriminatory dismissal on the basis of the complainant’s nationality. The complainant stated that all of the employees retained in employment at that time were Lithuanian, the same nationality as him. Therefore, whatever the reason(s) for terminating the complainant’s employment, the fact that he was chosen because he was a Lithuanian was not one of them. His claim of discriminatory dismissal must therefore fail.
5.9 Finally, I note the comment of the Equality Officer in a recent Decision Darguzis v Lough Corrib
Engineering Ltd [10] as follows – “throughout this case the assertion has been made 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 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. As no such difference has been established in this case I find that the procedures, or lack of them, was not discriminatory on the grounds of the complainant’s nationality.”. I would concur with this view and comment that in the instant case the complainant has, in essence, made similar assertions and has failed to establish facts from which it could be inferred that he was subjected to a difference in treatment.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that the complainant has failed to establish a prima facie case (i) of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts in respect of his conditions of employment and (ii) that he was dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts. Consequently his complaint cannot succeed.
_______________________________________
Vivian Jackson
Equality Officer
9 June, 2009