THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-019
PARTIES
Mr. Arturs Valpeters
(represented by Richard Grogan and Associates, Solicitors)
and
Melbury Developments Ltd.
File Reference: EE/2006/143
Date of Issue: 20th of March 2009
Employment Equality Acts 1998 – 2008 – S. 6 and 8 – race – discriminatory treatment – discriminatory dismissal
1. Claim
1.1. The case concerns a claim by Mr Arturs Valpeters that the Melbury Developments Ltd, discriminated against him on the ground of race contrary to Section(s) 6(2)(h) of the Employment Equality Acts 1998 to 2004, in terms of access to employment, conditions of employment, discriminatory dismissal and in relation to a collective agreement.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 8 May 2006. On 28 May 2008, 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 21 January 2009. A submission was received from the complainant on 22 August 2007. A submission was received from the respondent on 15 October 2007. Additional evidence was requested from the respondent at the hearing and received on 29 January 2009.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that he was an employee of the respondent’s instead of a sub-contractor, and that the Rights Commissioners, the Labour Court and the Employment Appeals Tribunal have found this to be so in various proceedings brought by the complainant under other employment rights legislation.
2.2. The complainant therefore submits that
he received no contract of employment, and not in a language that he would have understood;
he received no payslips;
he received no health and safety training;
he was not paid in accordance with the Registered Employment Agreement for the Construction Industry, which no Irish worker would have accepted;
3. Summary of the Respondent’s Written Submission
3.1. The respondent submits that much of the substance of the complainant’s submission has already been adjudicated by the Rights Commissioner, Labour Court and Employment Appeals Tribunal, and that under S. 101 of the Acts, the Equality Tribunal would have no jurisdiction in hearing those parts of the case.
3.2. Specifically, the respondent submits that
the complainant approached the respondent’s site manager prior to 19 May 2005, seeking employment. The complainant started work on 19 May 2005;
the issue of the complainant’s contract of employment was dealt with under other legislation;
a weekly remittance advice instead of a payslip was issued to the complainant;
the complainant failed to return for work on 3 January 2006 and did not advise the respondent of his non-attendance. He then approached the site manager for further work on 23 January 2006, and was advised that there were app. four weeks’ work available. The complainant commenced his second period of employment on 23 January 2006. On 10 February 2006, he and two other workers received one week’s notice, and the employment of all three workers was terminated on 18 February 2006.
4. Conclusions of the Equality Officer
4.1. At the hearing of the complaint, the complainant’s representative withdrew the complaint regarding access to employment and the complaint in regard to a collective agreement.
4.2. It was also clarified at the hearing of the complaint that the complainant had not brought a complaint of unfair dismissal under the Unfair Dismissals Acts 1977 to 2005. I am therefore not prevented by S. 101 of the Employment Equality Acts from exercising jurisdiction in relation to the complainant’s complaint of discriminatory dismissal, provided I find that the complainant was an employee of the respondent as defined in S. 2 of the Employments Equality Acts.
4.3. Further to proceedings brought to other employment rights bodies by the complainant, I note that the Rights Commissioner made findings under the Organisation of Working Time Act, 1997, the Terms of Employment (Information) Act, 1994, and the Payment of Wages Act, 1991, which were submitted in evidence. The Rights Commissioners findings with regard to the Organisation of Working Time Act were upheld on appeal by the Labour Court [WTC/06/07], all of which were submitted in evidence. These proceedings to not preclude me from investigating any breach of these entitlements as issues of discrimination.
4.4. Therefore, the issues for decision for me in this case are:
Was the complainant the employee of the respondent, and do I therefore have jurisdiction to investigate his complaint?
Was the complainant discriminated against in terms of conditions of employment on the ground of his race pursuant to S. 8(1)(b) of the Acts?
Was the complainant discriminatorily dismissed pursuant to S. 8(6)(c) of the Acts, on the ground of race?
4.5. I first turn to the issue whether the complainant was the respondent’s employee or an independent sub-contractor.
4.6. The complainant is Latvian and worked for the respondent as a general operative, doing concrete-casting, slabs, window-framing, cleaning and various other duties that did not involve the use of specialised machinery. He was expected to report for work every day, his place and times of work were fixed, his tasks were set by his supervisor, he could not delegate work, and he was given the equipment he needed to do his work. This evidence by the complainant was not challenged by the respondent, indeed, the respondent assisted in clarifying some of the complainant’s evidence.
4.7. The main test, under Irish law, for assessing this in work situations such as the complainant found himself was set out by Keane J in Henry Denny & Sons (Ireland) Ltd v. The Minister for Social Welfare [1998 1 IR 34]. The Supreme Court held that it was appropriate not only to examine the entire contractual agreement between the parties, but also the particular conditions under which work was performed. Keane J stated: “[…] in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”
4.9. I now turn to the substance of the complainant’s case. 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 and the burden of proof shifts to the respondent.
4.10. The complainant’s case with regard to a receipt of a contract of employment and receipt of payslips rests on his employment status. In this context, it is important to note that the finding in paragraph 4.8above, that the complainant is an employee of the respondent’s with regard to the Tribunal’s jurisdiction, does not automatically lead to a finding of less favourable treatment with regard to the complainant’s employment status. For such a finding to be made, it must be proven, on the balance of probabilities that at the material time other operatives of a different nationality, who were working for the respondent had a different, more favourable employment status than the complainant. The representative of the complainant did not adduce any evidence that this was the case. The respondent’s case was that all its workers were classified as subcontractors (see paragraph 3.3above). I therefore find that the complainant has not established a prima facie case with regard to his receipt of a contract of employment and receipt of pay slips.
4.11. I now turn to the complainant’s case that he was not given health and safety information in a language he could understand. The complainant gave his evidence at the hearing through an interpreter, and I am satisfied that his English is fairly limited. The complainant stated he was not given safety information. The respondent stated that it satisfied itself that the complainant held a valid FAS SafePass, which largely covered the hazards the complainant would encounter in his general operative duties. Training for the SafePass scheme is provided in a number of languages. The respondent further stated that safety information was given to all workers, although they did admit that they did not furnish translation or interpretation for this site-specific safety information.
4.12. In Campbell Catering v. Aderonke Rasaq [ED0252], the Labour Court held that
it is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. … In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.
4.13. I find that the complainant’s right to safety information is one such statutory right arising from the relevant health and safety legislation. The complainant would therefore have had a right to have specific safety information given to other workers translated or interpreted into a language he could understand. I therefore find that the complainant has established a prima facie case with regard to less favourable treatment on the ground of race in this matter that the respondent has not rebutted.
4.14. I now turn to the circumstances attaching to the complainant’s dismissal. It is the complainant’s contention that his employment should only have been terminated for a disciplinary matter, and also that he was given no notice, but rather that his employment was terminated from one day to the other. Specifically, the complainant contends that minimum notice under the Payment of Wages Act, 1991, was not complied with.
4.15. However, I note the Rights Commissioner’s finding that the minimum notice period specified under the Payment of Wages Act, 1991, was complied with. Since the complainant did not adduce any evidence that he was treated less favourably than an Irish worker in the way his dismissal was effected, I find that this part of the complainant’s case for discriminatory dismissal fails.
4.16. I now turn to the question whether the complainant’s selection for dismissal was discriminatory on the ground of race. The respondent’s quantity surveyor gave evidence that the construction project on which the complainant was employed was moving into a different phase, and that the respondent needed machine-operating operatives instead of general operatives such as the complainant. There was no work left to do for the complainant and two other general operatives whose employment came to an end on the same day. The respondent stated that these two operatives were Czech nationals, but insisted that the fact that all three workers were non-Irish nationals was a coincidence and should not be taken as racial discrimination.
4.17. The fact that the three non-Irish national on the site had their employment terminated whereas the four Irish workers continued in employment does give rise to a presumption of discrimination on the ground of race and therefore a prima facie case for the complainant that he was selected to be dismissed because of his nationality. However, I accept the evidence of the respondent’s witness as to the reasons that led to the termination of the complainant’s employment and find that the complainant’s case has been rebutted.
5. Decision
5.1. Based on all of the foregoing, and in conclusion of my investigation, I find, in accordance with S. 79(6) of the Acts, that:
(i) The respondent did discriminate against the complainant in his conditions of employment, in relation to the provision of health and safety information, contrary to S. 8(1)(b) of the Acts and
(ii) The respondent did not discriminatorily dismiss the complainant contrary to S. 8(6)(c) of the Acts on the ground of race pursuant to S. 6(2)(h) of the Acts.
5.2. I therefore order pursuant to S. 82(1) that respondent pay the complainant €500.—for the effects of the discrimination suffered. This award is not in the nature of pay and therefore not subject to tax.
_____________________
Stephen Bonnlander
Equality Officer
20 March 2009