THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2009-102
PARTIES
Mr. Oleg Botsin
(represented by Richard Grogan & Associates, Solicitors)
and
John Christopher Goode and
John Paul Goode t/a Tudor Paving Contractors
File Reference: EE/2006/499
Date of Issue: 12th November, 2009
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - access to employment - conditions of employment - training - harassment - failure to establish a prima facie case of discrimination
1. Dispute
1.1 This case concerns a complaint by Mr. Oleg Botsin, an Estonian national, that he was discriminated against by John Christopher Goode and John Paul Goode t/a Tudor Paving Contractors on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of access to employment, conditions of employment, harassment and in relation to a collective agreement.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 21st December, 2006 alleging that the respondent had discriminated against him on grounds of race as regards his access to employment, conditions of employment, harassment and in relation to a collective agreement. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case on 21st July, 2009 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 21st October, 2009.
3. Summary of the Complainant's case
3.1 The complainant, who is an ethnic Russian of Estonian nationality, was employed by the respondent as a bricklayer from 24th July, 2006 until 20th October, 2006. The complainant stated that there were a number of other employees of Latvian, Polish and Irish origin employed by the respondent during his period of employment. The complainant stated that he received no written contract or terms of employment and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The complainant submitted that following the Decision of this Tribunal in 58 Complainants -v- Goode Concrete there is an obligation on an employer to provide employees with a written contract of employment in a language which they understand. The complainant stated that he was not aware if the respondent had provided any of the other employees engaged at the same time as him with a contract of employment or other similar documentation.
3.2 The complainant submitted that the respondent failed to provide him with a health and safety statement even-though he is working in a potentially dangerous business. The complainant submitted that the respondent's failure to provide him with a health and safety statement in a language which he could understand amounts to discrimination within the meaning of the Acts.
3.3 The complainant submitted that the respondent did not pay him in accordance with the Registered Employment Agreement (REA) for the Construction Industry as he was only paid €11 per hour which is less than he should have been paid under the REA. The complainant stated that he was not aware of the rates paid to the other employees (including the Irish nationals) that were employed by the respondent. The complainant also submitted that he had not been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA. He submitted that an Irish national would have been aware of his/her rights in relation to pay, pension and sick pay and would insist on the employer contributions being made and that this amounts to discrimination on grounds of race.
3.4 The complainant submitted that his first week's wages were retained by the respondent. The complainant accepts that a claim in respect of unpaid wages was dealt with under the Payment of Wages Act. However, it was contended that in the case of a foreign national that they are in a particularly vulnerable position and require their wages. It was submitted that a notional Irish worker would not accept a situation where the first week's wages was retained by his/her employer.
3.5 The complainant also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001).
4. Summary of the Respondent's case
4.1 The respondent did not attend, nor was it represented at the Hearing, in fact, it did not engage with the Tribunal at any level following the referral of the present complaint.
5. Conclusions of the Equality Officer
5.1 At the outset of the hearing of the complaint, the complainant's representative withdrew the complaints relating to access to employment, in respect of a collective agreement and the complaint of harassment. Accordingly, the only issue for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards his conditions of employment.
5.2 Section 85A of the Employment Equality Acts, 1998 to 2008 provides as follows: "(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary". This requires the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Firstly, I will consider the issue that has been raised by the complainant in relation to the respondent's failure to provide him with a written contract of employment and a health and safety statement in a language which he could understand which he contended constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The complainant has submitted that the Decision of this Tribunal in 58 Complainants -v- Goode Concrete places an obligation on an employer to furnish non-Irish employees with a contract of employment/health and safety statement in a language which they understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes it's employees with contracts of employment/health and safety statements it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment/health and safety statement in English and not in a language which they can understand.
5.4 In the present case, I note the complainant stated in evidence that there were workers of various nationalities employed as bricklayers by the respondent at that time, including those of Latvian, Polish and Irish origin. The complainant stated that he was not aware if the respondent had issued any of the other employees, including those of Irish origin, engaged at the same time as him with a written contract of employment or a health and safety statement. The complainant submitted that an Irish employee would have been aware of his/her rights under both employment and health and safety legislation, and therefore, would have insisted that the respondent comply with it's obligations in terms of this aspect of their conditions of employment. It was therefore submitted that the Tribunal should infer that the complainant has been subjected to less favourable treatment on the grounds of his nationality and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination. In considering this issue, I have taken cognisance of the recent determination of the Labour Court in the case of Melbury Developments Limited and Valpeters . In that case the Labour Court stated, inter alia, that:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5.5 In the present case, I accept that the complainant has adduced evidence to suggest that he may have been treated badly by the respondent in terms of the provision of a contract of employment/health and safety statement. However, I do not have any jurisdiction to decide whether or not the respondent was in breach of it's obligations under the relevant employment and/or health and safety legislation. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination under the Employment Equality Acts. I am therefore not satisfied that the complainant, in the present case, has adduced any evidence from which I could reasonably conclude that he was treated less favourably than other workers of a different nationality (including those of Irish origin) in terms of the respondent's failure to provide him with a written contract of employment or a health and safety statement. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.6 The next issue raised by the complainant relates to the respondent's failure to pay him in accordance with the Registered Employment Agreement (REA) or to join him to the Construction Workers' Pension and Sick Pay Scheme. He submits that this constitutes discriminatory treatment of him on the 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 no authority in those issues. However, allegations that the terms of the REA are being provided in a discriminatory manner do fall within the remit of this Tribunal.
5.7 In the present case, the complainant could not confirm whether or not the other employees (including those of Irish origin) engaged by the respondent during his period of employment were paid in accordance with the REA or joined to the Scheme. Again, the complainant submitted that an Irish employee would have been aware of his/her rights under employment law and would therefore have insisted that the respondent comply with it's obligations in terms of this aspect of their conditions of employment. Having regard to the evidence adduced in the present case and in applying the reasoning of the Labour Court in the Melbury Developments Limited case, I am not satisfied that the complainant has established any facts from which it could be inferred that he was treated less favourably than other workers of a different nationality (including those of Irish origin) in terms of the manner in which the REA was applied to his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.8 The final issue that I must consider relates to the complainant's contention that the respondent retained his first week's wages. The complainant accepts that this matter was dealt with by a Rights Commissioner in accordance with the provisions of the Payment of Wages Act, 1991. However, he contended that a notional Irish comparator would not accept a situation where his/her first week's wages was retained by the respondent and it was submitted therefore that this should be sufficient to raise an inference of less favourable treatment on the grounds of his race. I note that the complainant was unable to confirm whether or not the other employees, including those of Irish origin, engaged by the respondent during his period of employment were also subjected to such treatment by the respondent. Having regard to the evidence adduced in the present case and in applying the reasoning of the Labour Court in the Melbury Developments Limited case, I am not satisfied that the complainant has established any facts from which it could be inferred that he was treated less favourably than other workers of a different nationality (including those of Irish origin) in terms of the allegation that the respondent retained his first week's wages. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment contrary to section 8(1) of the Acts. Accordingly, I find in favour of the respondent in this matter.
______________
Enda Murphy
Equality Officer
12th November, 2009