The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
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Website: www.equalitytribunal.ie
Employment Equality Acts
DECISION
NO: DEC-E2009-108
PARTIES
Bendziunas
(Represented by Richard Grogan & Associates)
- V -
Neill Kellett T/A New European Cleaning Solutions
(Represented by Terence Cosgrave & Co. Solicitors)
File reference: EE/2007/198
Date of issue: 19 November 2009
Keywords
Employment Equality Acts - Discriminatory Treatment - Pay - Training - Race - Prima facie case
1. Dispute
1.1 This dispute concerns a claim by Mr. Vilius Benziunas that he was subjected to discriminatory treatment by New European Cleaning Solutions on the grounds of race in terms of section 6(2)(h) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 16 April 2007 under the Employment Equality Acts. On 5 May, 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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 sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 6 July 2009. A further legal submission was received from the complainant's representative on 9 July 2009. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. Case for the complainant
2.1. The complainant submitted that he worked with the respondent company between June 2006 and January 2007. It was submitted that the complainant received no contract of employment nor health and safety documentation/training. It was submitted that the employer maintained that the complainant was involved in cleaning services. The complainant himself submitted that during the course of his employment with the respondent, the complainant worked in named sites where his work consisted of carrying blocks, mortar mixing, carrying pallets and cleaning and working on a cherry picker. It was submitted that the complainant did so for at least three weeks. It was further submitted that this is a mobile elevated platform to which the complainant has no ticket for, that is, he is not qualified to work on such platform.
2.2. It was submitted that the fact that the complainant's employment rights have been violated, as highlighted by the Rights Commissioner Hearing findings, establishes a prima facie case of discrimination. It was argued that non-national workers are more vulnerable than Irish workers would be in comparable situations. It was submitted that the respondent only recruited workers from outside Ireland. It was submitted that in such circumstances the Tribunal ought to use a notional comparator to prevent such employees from flaunting employment rights.
2.3. It was submitted that the complainant would have been covered by the Registered Employment Agreement (REA) for the Construction Industry. It was submitted that the complainant's rights were not complied with in relation to this REA. It was submitted that the complainant, as a non-national, would not have been aware of the rate that he ought to have been entitled to be paid. The complainant, it was submitted, was not aware as a foreign national what the rate of pay would have been for Irish nationals under the REA rates. It was submitted that if Irish workers were paid REA rates then this would amount to discrimination contrary to the Acts.
2.4. Furthermore, it was submitted that the complainant should have been joined into the Construction Workers Pension Scheme and Sick Pay Scheme as a construction worker. It was submitted that the complainant was not included into those schemes and as a result of same the complainant has lost out on pension entitlements. It was submitted that this amounts to discrimination contrary to the Acts.
2.5. It was submitted that there would have been an obligation to join the complainant into an union but that this was not done. It was submitted that this amounts to discrimination contrary to the Acts.
2.6. The complainant's representative submitted that the Tribunal should consider the reasoning of the Labour Court determination in Campbell Catering case. The complainant's representative also submitted Khumalo v. Cleary & Doyle Ltd. (DEC-E2008-003), 58 Named Complainants v. Goode Concrete Ltd. (DEC-E2008-020), Golovan v. Portulin Shell Fish Ltd. (DEC-E2008-032). A further submission citing Balamoody v. United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] ICR 646 was also received.
2.7. Furthermore, it was submitted that the respondent, being the employer, had access to information that was particular to them and that it could not be presumed that an employee would have all the evidence without such information. It was submitted that as a foreign national the complainant was more vulnerable than an Irish national would have been in similar circumstances and that an Irish worker would not have put up with such treatment.
3. Case for the respondent
3.1. The respondent's solicitor wrote to the Tribunal on 22 August 2008 and stated: "The respondent specifically instructs that this complaint is frivolous, vexatious and devoid of any merit or bone fides and constitutes malicious and opportunistic abuse of the process of the Equality Tribunal". Neither the respondent nor his representatives participated at the hearing.
4. Conclusion of the Equality Officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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.
4.2. I note that the complainant has received redress from the Rights Commissioner in relation to the Terms of Employment (Information) Act and the Organisation of Working Time Act for violations in relation to these acts. I have been presented with no further evidence to support an argument that these violations occurred because the complainant is not an Irish national. Nor have I been presented with any evidence to support an argument of less favourable treatment on the race ground in relation to the health and safety training. I do not accept the circumstances surrounding the complainant are similar to those set out in Campbell, Goode, Golovan or Khumalo.
4.3. I do not accept that a simple presentation of Rights Commissioner's findings can give rise of a prima facie case on the race ground. I have been presented with no evidence to support an argument that only Irish people are aware of their employment rights and that non-Irish persons are therefore more vulnerable to such violations. I do not accept, without any evidence to the contrary, that such alleged violations do not take place in relation to workers who are Irish nationals. The Employment Equality Acts were not put in place to provide non-Irish workers with more favourable treatment than would be provided to an Irish worker in similar circumstances. The Acts are very clear in relation to the burden of proof. In this case it is simply not enough to present a person who is not of Irish background and state that they have been treated less favourably than an Irish person would have been in similar circumstances. The complainant must be able to show some significant evidence of less favourable treatment and this treatment must be linked to the person's nationality.
4.4. I have been presented with no evidence to support an argument that - because of the complainant's nationality - he was excluded from a REA. As such, I cannot consider any alleged obligations that the complainant's representative submitted the REA would have imposed on the respondent. No evidence was presented to support an argument that an Irish person working for this company would have been viewed as a construction worker. I note that the complainant himself submitted that he was employed to provide cleaning services.
4.5. While I accept that certain information may be particular to the employer, a complainant must be in possession of facts that have sufficient significance to a claim of discrimination. It is only when these facts have been established that a respondent needs to prove them to the contrary.
4.6. While I agree that an employer who only employs non-Irish nationals cannot presume to defend themselves from discrimination by simply claiming that they treated everyone less favourably, the issue of a notional comparator can only become an issue when evidence to support such an approach has been presented to this Tribunal. This approach is supported by the recent Labour Court Recommendation ADE 0917, Melbury Developments Ltd v. Arturs Valpeters:
"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."
The Court went on to say "... the Court cannot accept that the peculiar knowledge principle can avail the Complainant so as to relieve him of the obligation to prove the primary facts upon which he relies in accordance with Section 85A of the Act." In this case, no such evidence has been presented.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the respondent did not discriminate against the complainant on the race ground. Therefore, the complaint fails.
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Tara Coogan
Equality Officer
19 November 2009