Equality Officer's Decision
DEC-E2009-088
Kostas Avizinis
(Represented by Mr. Peter Leonard B.L.
on the instructions of Richard Grogan & Associates)
v
J. Ryan Haulage Ltd.
(Represented by ESA Consultants)
File reference: EE/2007/505
Date: 9th October, 2009
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - access to employment - conditions of employment - training - discriminatory dismissal - harassment
1. Dispute
1.1 This case concerns a complaint by Mr. Kostas Avizinis, a Lithuanian national, that he was discriminated against by J. Ryan Haulage Ltd. on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in relation to (i) access to employment, (ii) training, (iii) conditions of employment, (iv) discriminatory dismissal and (v) harassment contrary to sections 8 and 14A of the Acts.
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 17 September, 2007 alleging that the respondent had discriminated against him on grounds of race when it summarily dismissed him from employment following his involvement in a road traffic accident on 4 July, 2007 involving the truck he was driving for the respondent. The respondent disputes this and maintains that the complainant was dismissed on the grounds of gross misconduct as a result of a breach of trust in the working relationship following the complainant's involvement in this road traffic accident.
2.2 In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case on 8 May, 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. A hearing on the complaint was held on 11 September, 2009.
3. Summary of the Complainant's case
3.1 The complainant, who is a Lithuanian national, commenced employment with the respondent as a truck driver on 23 May, 2007. The complainant stated that there were a number of other employees of Lithuanian, Polish, Romanian and Irish origin employed by the respondent as truck drivers 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 contended 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 as far as he was aware the respondent had not provided any of the other employees engaged at the same time as him with a contract of employment or other similar documentation. The complainant also stated that the respondent failed to provide him with a Health and Safety statement in a language which he could understand or with any health and safety training and he claimed that this failure constitutes less favourable treatment of him on the grounds of race contrary to the Acts. The complainant stated that the only training he received was on his first day of employment when he was accompanied by one of the respondent's established truck drivers for half a day.
3.2 The complainant stated that the truck which he was driving for the respondent was involved in a road traffic accident on 4 July, 2007. He claims that his vehicle had faulty brakes and that he had reported this issue to the respondent on three separate occasions prior to the accident. The complainant stated that he was driving his truck on the N4 when the driver of a jeep in front of him stopped suddenly when approaching a set of traffic lights. The complainant claimed that he was unable to stop his vehicle because of the faulty brakes and as a result his vehicle crashed into the rear of the jeep. The complainant accepts that there was damage caused to both vehicles as a result of the impact but he did not consider this damage to be very serious.
3.3 The complainant stated that he spoke to the respondent's Transport Manager, Mr. X, by telephone following the accident and notified him of the situation. The complainant stated that Mr. X arrived at the scene of the accident a short time later and after inspecting the damage to the truck, Mr. X instructed him to drive it back to the respondent's premises. When the complainant arrived back at the respondent's premises he was informed by Mr. X that the truck would have to be repaired and that he would be contacted by the respondent in a few days. The complainant states that he contacted the respondent about 3/4 days later, as he had not received any further contact, and was informed by Mr. X that he was dismissed from his employment. The complainant states that he was not provided with a reason for the dismissal nor was he afforded any disciplinary procedures in relation to the dismissal. It is submitted that the respondent's treatment of him constitutes discrimination on the grounds of his race contrary to the Acts. The complainant also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), Citibank -v- Ntoko (EED045), A Company -v- A Worker (EED024) and 58 Complainants -v- Goode Concrete (DEC-E2008-020).
4. Summary of the Respondent's case
4.1 The respondent stated that the complainant was employed as a truck driver from 23 May, 2007 to 4 July, 2007. The respondent submitted that it is a family owned haulage business which employed approx. 70 members of staff in July, 2007, including truck drivers of Irish, Polish, Lithuanian, Romanian, Czech and Scottish origin. The respondent accepts that the complainant was not given a written contract of employment or terms or conditions during his period of employment. The respondent stated that none of the workers which it employed, either during or prior to this period of time, including those of Irish origin, were issued with a written contract of employment or terms of conditions. The respondent stated that it only started to issue written contracts of employment to its employees in July, 2008, and it therefore submitted that the failure to issue the complainant with this documentation was not based on his nationality.
4.2 The respondent stated that it had a Health and Safety policy in place at the time of the complaint's employment and it stated that all employees were asked to sign a copy of this document upon commencing employment with the company. The respondent stated that it was not certain whether or not the complainant was asked to sign this document when he commenced employment. It also stated that all employees were given a booklet of documents upon commencing employment which contained general information about health and safety procedures. The respondent states that this information would have been provided to the complainant when he commenced employment. The respondent submitted that the complainant was provided with the same health and safety information as all of it's other employees, including those of Irish origin, and it therefore claims that this treatment does not constitute discrimination contrary to the Acts.
4.3 The respondent stated that it received a telephone call on 4 July, 2007 at approx. 11:15 a.m. in which it was reported that the truck which the complainant was driving had been involved in a crash on the N4. It stated that the Transport Manager, Mr. X, immediately went to the scene of the incident after receiving this report. The respondent stated that it was clear from the scene that the complainant's truck had crashed into the rear of the jeep at a set of traffic lights. The respondent stated that Mr. X spoke to the complainant and the driver of the other vehicle in order to enquire about their well-being and that he also inspected the damage to both vehicles. The respondent stated that there was damage to the front bumper and lights on the complainant's truck and after Mr. X had established it was driveable, he then instructed the complainant to drive the truck back to the respondent's premises. The respondent stated that the complainant was told that it would be necessary to repair the truck and that he would be contacted in the coming days regarding the matter.
4.4 The respondent stated that an internal investigation into the crash was carried out by Mr. Y, Managing Director, and Mr. X and it was established from the tachograph records taken from the complainant's truck immediately prior to the crash that the vehicle had been driving in excess of the speed limit. The respondent claimed that the speed at which the complainant's vehicle was travelling had directly contributed to his inability to stop the truck at the set of traffic lights. The respondent denied that the complainant had reported any defects regarding the brakes on the truck prior to this crash and it claimed that this vehicle was regularly serviced and inspected prior to this incident. The respondent claims that Mr. X spoke to a member of the Gardai who was called to the scene of the crash and it maintained that the Garda informed Mr. X that the complainant was at fault for the crash. The respondent also stated that it's insurance company made a settlement to the third party in the amount of €16,228.50 following the crash on the basis that it had deemed the complainant to be at fault for the accident.
4.5 The respondent stated that following this investigation a decision was taken to terminate the complainant's employment as it had concluded that he was responsible for the crash and consequently, there had a been a breach of trust in the working relationship. The complainant was subsequently informed of his dismissal during the course of a conversation with Mr. X. The respondent accepts that the complainant was not afforded recourse to any internal Grievance or Disciplinary Procedures in relation to the dismissal and it stated that it did not have any such procedures in place at that juncture. The respondent denies that the complainant's dismissal was in any way related to his nationality and it submitted that an Irish driver would have also been dismissed for gross misconduct in similar circumstances.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this claim is whether or not the respondent (i) 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 access to employment, conditions of employment and training (ii) discriminated against the complainant on the grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 when he was summarily dismissed and (iii) harassed 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 14A of those Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.2 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.
Conditions of Employment
5.3 The first issue that I must consider is whether or not the complainant was subjected to discrimination on the grounds of his race in relation to his conditions of employment. Firstly, I note that the complainant has claimed that he was discriminated against by the respondent in relation to access to employment. It was accepted by both parties that the complainant was afforded employment by the respondent as a truck driver. The complainant has failed to adduce any evidence to support his claim that he was subjected to less favourable treatment by the respondent in relation to access to employment. I therefore find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.4 The complainant has claimed that the respondent failed to provide him with a written contract of employment and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. The respondent accepts that it did not issue a written contract of employment to the complainant and claims that it did not issue written contracts to any of it's employees at that juncture, regardless of their nationality. It was not disputed that the respondent employed truck drivers of various nationalities at that time, including those of Irish, Polish, Lithuanian, Romanian and Czech origin. The complainant acknowledged at the hearing that, as far as he was aware, the respondent had not provided any of the other employees engaged at the same time as him with a contract of employment. In the circumstances, I am satisfied that the respondent's failure to provide the complainant with a written contract of employment was in no way attributable to his nationality. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.5 The complainant has also claimed that the respondent failed to provide him with any health and safety documentation or training and he contended that this constitutes unlawful discrimination of him on the grounds of race contrary to the Acts. In the present case, the respondent claimed that it had a health and safety policy in place at the time the complainant was employed and it contended that all employees were requested to sign a copy of this document upon commencing employment. It also claimed that all employees were given a booklet of documents upon commencing employment which contained general information about health and safety procedures. I note that the respondent was unable to confirm whether the complainant was actually provided with this health and safety information and documentation upon commencing his employment. I am satisfied that the complainant would have had a very poor standard of English when he commenced employment with the respondent and this is evidenced by the fact that he gave his evidence at the hearing entirely through an interpreter. I am therefore satisfied that the complainant would not have been in a position to understand the health and safety information in the English language, if it had been presented to him by the respondent upon commencing employment.
5.6 In considering this issue, I have taken note of the Equality Officer's decision in 58 Complainants -v- Goode Concrete where it was held that, in fulfilling it's obligation to provide information, instruction and training to employees under Health and Safety legislation, an employer risked a finding of less favourable treatment under the equality legislation, if in circumstances where it provided information, instruction or training to employees, it did not provide that information, instruction or training to non-Irish employees in a language which they could understand. In the instant case, the respondent did not adduce any evidence to suggest that it put measures in place to translate the health and safety information, which it claims was provided to all of it's employees, into languages which it's non-national employees could understand. Having regard to the evidence adduced, I have found the complainant's evidence regarding this issue to be more compelling and I am satisfied, on the balance of probabilities, that he was not provided with health and safety information in a language that he could understand upon commencing employment with the respondent. In the circumstances, I therefore find that the complainant has established a prima facie case of discrimination of less favourable treatment in his terms and conditions of employment in relation to the provision of health and safety information in a language which he could understand and that the respondent has failed to rebut the inference of less favourable treatment in this regard.
Discriminatory Dismissal
5.7 I will next consider the complainant's claim that he was dismissed from his employment on the grounds of his race contrary to the Acts. It was accepted by both parties that the vehicle which the complainant was driving was involved in an accident on 4 July, 2007, in which the complainant's truck crashed into the rear of a jeep at a set of traffic lights. The complainant claims that the truck had defective brakes and as a result he was unable to stop the vehicle and thereby prevent it from crashing into the back of the jeep. The respondent has denied that the truck had defective brakes or that the complainant had reported this matter to it prior to the accident. The respondent claimed that the complainant was driving the truck at an excessive speed prior to the impact and it contends that he was totally at fault for the accident. In considering this issue, I have found the respondent's evidence regarding both, the roadworthiness of the truck and the circumstances surrounding the accident, to be more compelling. In coming to this conclusion, I have found the following evidence to be particularly persuasive, namely
- the respondent submitted vehicle service records which demonstrate that the truck which the complainant was driving was regularly serviced and roadworthy.
- the respondent submitted tachograph records which demonstrate that the vehicle which the complainant was driving had been driving above the legal speed limit prior to the accident.
- documentary evidence that the respondent's insurance company settled the claim from the third party for an amount of €16,228.50 following the crash on the basis that it had deemed the complainant to be at fault for the accident.
I also note that the respondent adduced evidence at the hearing that the Garda who attended the accident informed Mr. X, Transport Manager, that he was of the opinion that the complainant was at fault for the accident. The respondent has also adduced documentary evidence that the complainant was issued with a speeding ticket by a security firm operating on a site which he had visited immediately prior to the accident. In coming to my conclusion in this regard, I have not attached any weight to this evidence on the basis that it is purely hearsay in nature and that neither the Garda nor the member of staff from the security company attended the hearing to corroborate this evidence.
5.8 It was not in dispute that the complainant was summarily dismissed from his employment following this accident. Therefore, in order to decide whether the complainant was subjected to a discriminatory dismissal on the grounds of his race, I must consider whether the respondent would also have dismissed one of it's Irish truck drivers in circumstances similar to the incident which is the subject of the present case. The respondent has claimed that the complainant was guilty of gross misconduct in terms of his involvement in the accident and that it therefore decided to terminate his employment based upon a loss of trust in the working relationship. The respondent submitted that it would have taken the same decision in respect of any driver who had been involved in an accident in similar circumstances, regardless of the driver's nationality. Having regard to the evidence adduced, I am satisfied that the respondent's decision to dismiss the complainant was not in any way connected to his nationality and that it would have taken the same decision to dismiss one of it's Irish driver's had this driver been involved in an accident in similar circumstances.
5.9 The complainant also raised issues regarding the failure of the respondent to invoke a grievance or disciplinary procedure in relation to his dismissal and he also argued that the respondent failed to adhere to fair procedures in terms of the manner in which it effected the dismissal. Although the complainant has argued that fair procedures were not complied with in relation to his dismissal, the issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of race in relation to his dismissal. This Tribunal has no jurisdiction to decide on the unfairness or otherwise of the dismissal; the complainant needs to prove that it was connected to his race. I accept the respondent's contention that it did not have any Grievance or Disciplinary Procedures in place at that juncture and I am therefore satisfied that any employee who was being dismissed by the respondent in similar circumstances to the complainant would not have been afforded access to such procedures. Accordingly, I am satisfied that the manner in which the complainant's dismissal was effected was in no way connected to his race. Having regard to all the evidence, I am satisfied that the complainant has failed to establish a prima facie case in relation to his dismissal on the grounds of race.
Harassment
5.10 The complainant did not present any oral or written evidence from which I could reasonably conclude that he was subjected to harassment by the respondent within the meaning of section 14A of the Employment Equality Acts, 1998 to 2008. Accordingly, I am satisfied that the complainant has failed to establish a prima facie case of harassment contrary to the Acts.
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:
(i) The respondent did not discriminate against the complainant on the race ground pursuant to section 6(2) of the Acts in terms of his access to employment contrary to section 8(1) of the Acts.
(ii) 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 in relation to its failure to provide him with a written contract or terms of employment.
(iii) The respondent did 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, in not ensuring that he was provided with health and safety information and training in a language which he could understand.
(iv) The respondent did not discriminatorily dismiss the complainant on the race ground pursuant to section 6(2) of the Acts, contrary to section 8(6) of the Acts.
(v) The respondent did not subject the complainant to harassment on the race ground pursuant to section 6(2) of the Acts, contrary to section 14A of the Acts.
6.2 In accordance with section 82 of the Employment Equality Acts, 1998 to 2008, I therefore order that the respondent pay the complainant the sum of €500 in compensation for the effects of the discrimination suffered. This award is not in the nature of pay, and therefore not subject to tax.
______________
Enda Murphy
Equality Officer
9th October, 2009