THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2009 - 103
PARTIES
Mr. Vadims Saluhanskas and Mr Dmitri Barisnikovs
(represented by Richard Grogan and Associates, Solicitors)
and
Cooper Marquees Ltd.
(represented by Peninsula Business Services)
File References: EE/2007/103
EE/2007/133
Date of Issue: 10th November 2009
Claim
1.1. The case concerns claims by Mr Vadims Saluhanskas and Mr Dmitri Barisnikovs that Cooper Marquees Ltd discriminated against them on the ground of race or nationality contrary to Section(s) 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of access to employment, harassment and discriminatory dismissal.
1.2. Mr Saluhanskas referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 28 February 2007. Mr Barisnikovs did so on 20 March 2007. A submission was received from the complainant on 23 July 2008. A submission was received from the respondent on 5 September 2008. On 31 March 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated both cases 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 7 October 2009.
2. Summary of the Complainant's Written Submission
2.1. Mr Saluhanskas complains that he was not provided with a contract of employment; that he was not paid according to the Registered Employment Agreement for the Construction Industry; that he was not provided with health and safety information; that he was forced to work excessive hours, and that he was dismissed without proper procedures. He alleges that this amounts to discrimination on the ground of his nationality. No specific details were submitted with regard to the complainant's complaints of access to employment and harassment.
2.2. Mr Barisnikovs also complains that he was not provided with a contract of employment; that he was not paid according to the Registered Employment Agreement for the Construction Industry; that he was not provided with health and safety information; that he was forced to work excessive hours, and that he was dismissed without proper procedures. He alleges that this amounts to discrimination on the ground of his nationality. No specific details were submitted with regard to the complainant's complaints of access to employment and harassment.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against the complainants, on the ground of their nationality, or at all. It submits that the REA for the Construction Industry does not apply to Marquee erectors, and that therefore this point in the complainants' case is moot.
3.2. It further submits that issues around provision of a contract and health and safety information in the complainant's language pre-date the Tribunal decision in 58 Named Complainants v. Goode Concrete Ltd [DEC-E2008-020] and should therefore not held to be applicable. The respondent also submits that due to the fact that the complainants were hired through an agency called "Work in UK", which is based in Latvia and recruited Latvian workers to work abroad, the basic terms and conditions of employment were set out in their job offer form, which was signed by the complainants, and countersigned by the owner of the respondent company.
3.3. With regard to the complainants' complaint of discriminatory dismissal, the respondent submits that the complainants were on fixed term contracts from 22 June 2006 to end of September/start of October 2006. The respondent accepts that the contracts did not have a fixed end date, but argues that the Marquee sector is a seasonal business and that the end of the complainants' employment was clearly set out in their job offer form. The respondent therefore denies dismissing the complainants, but argues that their contracts came to an end as previously agreed, when work for the season dried up.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainants were discriminated against and harassed on the ground of race within the meaning of the Acts; and whether they were discriminatorily dismissed.
4.2. 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.
4.3. At the beginning of the hearing, the complainants' representative withdrew the complaints relating to access to employment.
4.4. Furthermore, the complainants did not elaborate on their claim that they were not paid according to the REA for the Construction Industry, and they did not name any comparators in this regard. Accordingly, I find that no prima facie case on this matter has been established by the complainants; and that this part of their complaint must therefore fail.
4.5. With regard to their complaint that they did not receive a contract of employment, I am satisfied that their written job offer can contained the main terms of their employment with the respondent. Both complainants confirmed in oral evidence that they understood the document when it was presented to them for signature. Furthermore, the complainants were not in a position to show that other employees of the respondent were treated more favourably in this matter. Accordingly, I find that no prima facie case on this matter has been established by the complainants; and that this part of their complaint must therefore fail.
4.6. On the matter of the provision of health and safety information, a conflict of evidence arose between the parties. The respondent had submitted its health and safety statement in evidence prior to the hearing. This document is very detailed and written in complex language, and contains many terms that are peculiar to the Marquee Erecting industry. I am satisfied that even a native speaker of English would be in need of additional explanations to understand the document, if that person had no prior experience as a Marquee Erector. That said, it is the respondent's case that the safety statement was available for an English-speaking worker of the company to consult. The respondent further stated that it sent the health and safety documentation to the agency that was hiring the complainants for them, with a request to have it translated. However, despite the fact that the respondent was able to produce other emails to the agency in evidence, there was no evidence that the health and safety information was sent as stated, or that it was accompanied by a request to have it translated so that the complainants could familiarise themselves with it.
4.7. The complainants, on the other hand, were unanimous in their evidence that they received no information or training in health and safety whatsoever, and that they were essentially handed a hard hat and told to start working. The complainants' command of English at the hearing ranged from basic (Mr Barisnikovs) to intermediate standard (Mr Saluhanskas).
4.8. I prefer the evidence of the complainants in this matter. I am satisfied, therefore, that the complainants were in need of having the respondent's health and safety documentation explained to them in a language they were competent in, and that they were treated less favourably in this regard than employees of the respondent who were either native speakers of English, or had better English than the complainants. I therefore find that the complainants have established a prima facie case of less favourable treatment in their terms and conditions of employment on the ground of their nationality, with regard to the provision of health and safety information.
4.9. I now turn to the complainants' complaints of harassment. Mr Saluhanskas gave evidence that discipline was not enforced when Irish workers stood around, smoked and did nothing, while the non-national workers moved to start their work in the morning. He further stated that when he and his non-national colleagues once tried to do the same, that is, hang back and smoke and let their Irish colleagues do the work, they were shouted at: "You are standing around and doing nothing, lazy bastard!" Mr Barisnikovs confirmed Mr Saluhanskas's evidence. Both men confirmed in their evidence that no denigrating expressions relating to their nationality were used.
4.10. The respondent stated in response that this situation arose only once, and that it arose during a contract with a life-sciences company, where smoking was strictly prohibited on the company grounds. The owner of the respondent business, Mr Cooper, was in attendance at the hearing to give evidence, and I questioned him extensively about the complainants' proposition that the difference in work morale between Irish and non-Irish staff was a regular occurrence, and that the Irish workers were not disciplined for their lack of engagement. I did not receive a satisfactory answer from him on these matters. I further asked him why, as per his own statement, he employs approximately 80% non-national workers. He responded that Irish workers were "more discerning about their work and less committed". From this statement, I draw an inference that the respondent prefers to hire non-national workers for their better work morale, and that this affirms, rather than rebuts, the complainants' statement on unequal enforcement of discipline.
4.11. I find that due to the fact that their nationality was not at issue in the manner in which they were spoken to, that a prima facie case of harassment does not arise. However, I do find that a prima facie case of less favourable treatment on the ground of nationality arises with regard to unequal enforcement of work discipline and that this has not been rebutted.
4.12. Mr Barisnikovs further related an incident where a large yellow rubbish bin was placed on a client premise, with rubbish strewn around it. According to Mr Barisnikovs, his supervisor cut a hole into the rubbish bin, so that more rubbish leaked out, and then ordered Mr Barisnikovs to collect all rubbish and put it back into the bin. Mr Barisnikovs stated that this incident only happened to him, and that no one else was so treated.
4.13. Mr Cooper, upon hearing Mr Barisnikovs's evidence, stated that he had not been aware of this incident, and did not seek to dispute it. Mr Cooper appeared genuinely shocked, and I accept his evidence that he had no prior knowledge of the matter and had not received any complaints in regard to it. At the same time, he stated that the company did not have a policy with regard to the prevention of harassment under the nine grounds covered by the Acts, which would have given Mr Barisnikovs guidance as to how to address the matter with management.
4.14. I accept Mr Barisnikovs's evidence in this matter. I am satisfied that the manner in which his supervisor treated him in the bin incident raises an inference of discrimination on the ground of his nationality which the respondent has failed to rebut.
4.15. Turning to the complainants' case of discriminatory dismissal, both complainants gave evidence that one day, they each received a voicemail message on their mobile phones saying "Sorry guys, we have no more work for you."
4.16. The respondent stated in response that the Marquee Erecting business was seasonal and coming to an end at the beginning of autumn each year, approximately mid-September to the beginning of October. Furthermore, the respondent was able to demonstrate from P35 documentation that the complainants had been employed for as long as their initial job offer said they would be employed. In his response, the complainants' representative raised technical issues on fixed-term contracts that are outside the Tribunal's jurisdiction. However, I am satisfied that the complainants knew from the outset that their contracts with the respondent would be of limited duration, and that these contracts came to an end as advised. I therefore find that a prima facie case of discriminatory dismissal on the ground of the complainants' nationality does not arise and that this part of their complaint must fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) The respondent did not discriminate against the complainants with regard to pay pursuant to S. 29 of the Acts; or in their terms and conditions of employment pursuant to S. 8(1) of the Acts, with regard to the provision of a contracts of employment.
(ii) The respondent did not discriminatorily dismiss the complainants contrary to the provisions of S. 8(6) of the Acts.
(iii) The respondent did discriminate against the complainants in their conditions of employment, in relation to the provision of health and safety information, and by enforcing discipline in a discriminatory manner, contrary to S. 8(1) of the Acts.
5.2. In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay:
(i) To Mr Vadims Saluhanskas: €500 for the non-provision of health and safety information in a language he was competent in; and €1500 for discrimination suffered in the less favourable treatment in the enforcement of discipline.
(ii) To Mr Dmitrij Barisnikovs: €500 for the non-provision of health and safety information in a language he was competent in; €1500 for discrimination suffered in the less favourable treatment in the enforcement of discipline; and €1000 for the treatment suffered in the rubbish bin incident.
(iii) These awards are in compensation for the distress experienced by the complainants in relation to the above matters, and is not in the nature of pay, and therefore not subject to tax.
__________________________
Stephen Bonnlander
Equality Officer
10 November 2009