The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER'S DECISION DEC-E2009-090
PARTIES
Volodymyr Kovalchyk & Viktoryia Matvyeyeva
(Represented by Richard Grogan & Associates)
AND
Denber Forestry Services Limited (in voluntary liquidation)
(Liquidator Derek Earl of Grant Thornton)
File reference: EE/2009/161 & EE/2009/162
Date of issue: 14 October 2009
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Race - Conditions of employment and discriminatory dismissal. Prima Facie Case.
1. DISPUTE
1.1 This dispute concerns claims by Mr Volodymyr Kovalchyk and Ms Viktoryia Matvyeyeva that they were discriminated against by Denber Forestry Services Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts 1998-2008 in relation to training, conditions of employment, other and discriminatory dismissal in terms of sections 8 of the Acts.
1.2 The complainants referred their claims to the Director of the Equality Tribunal on 4 March 2009 under the Employment Equality Acts 1998 to 2008. On 30 April 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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. A submission was received from the complainants. Since the claims were made the respondent had gone into voluntary liquidation and Derek Earl of Grant Thornton appointed as Liquidator. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 29 July 2009. The Liquidator gave notice in advance that he would not be attending the hearing but provided information after the hearing. Final information was received on 8 September 2009.
2. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
2.1 The complainants worked for the respondent as general operatives on the minimum wage and allege that the respondent:
- provided them with no proper health and safety training
- gave them no proper tax documentation
- gave them no contract of employment
- did not pay them for three weeks
- required them to work in contravention of the Organisation of Working Time Act
- did not give them their minimum notice entitlement
- did not give them their proper holiday pay
- dismissed them without giving them any redundancy documents
These allegations if substantiated would amount to breaches of several different pieces of legislation and I was informed that the complainants are seeking recourse accordingly. However, these breaches of legislation do not in themselves amount to discriminatory treatment or dismissal. Section 6 of the Acts states that "discrimination shall be taken to occur where a person is treated less favourably than another person .. has been .. in a comparable situation on any of the grounds." The complainants are from Ukraine and submitted that their colleagues came from a number of countries, including; Poland, Lithuania, Ukraine, Romania, Russia, Czech Republic, India, Bali and China, and that most on them were on Work Permit Visas obtained by their employer. Whilst they worked as general operatives they submitted that the only Irish employee was a driver and they were unaware of his conditions of employment. The complainants gave evidence that they were afraid to raise employment issues with the respondent because if they were dismissed their Work Permit would become invalid and they would have to return to their own country and this position made them vulnerable to the breaches of employment legislation which they allege.
2.2 No evidence was provided by the complainants that they were treated less favourably than another employee. Their representative argued that a hypothetical Irish comparator, who would not have been afraid to raise employment issues with the respondent, is the appropriate comparator and they would not have been subject to the breaches of employment legislation that the complainants allege. They contend that this leads to an inference of discriminatory treatment on the grounds of race.
2.3 Section 85A (1) of the Employment Equality Acts, 1998 - 2008 states: "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 means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. In deciding whether the complainants have established a prima facie case I will use the approach taken by the UK Employment Appeal Tribunal in Laing v Manchester City Council, Appeal No. UKEAT/0128/06, paragraph 65, " In our view, if one considers the burden of proof provision in the context of what a claimant needs to establish in a discrimination claim, what it envisages is that the onus lies on the employee to show potentially less favourable treatment from which an inference of discrimination could properly be drawn. Typically this will involve identifying an actual comparator treated differently or, in the absence of such a comparator a hypothetical one who would have been treated more favourably. That involves a consideration of all material facts (as opposed to any explanation)."
2.4 Therefore, in order to make a decision as to whether a prima facie case has been established I will consider all the material facts and take into account information obtained from the Liquidator. This shows that at the date of liquidation the respondent had 88 employees of whom 27 had work permits, 12 appear to be Irish and 49 non-Irish who did not require a work permit. In these claims no evidence was provided by the complainants that they were treated differently than another person in a comparable situation but relied on a hypothetical comparator.The Labour Court in Melbury Developments Limited and Arturs Valpeters, Det, No. EDA0917 found that, "Knowledge of how the Complainant's fellow workers were treated is not exclusively or almost exclusively within the knowledge of the Respondent. Nor could it be said that it is peculiarly within the range of Respondent's capacity of proof. It is also plainly within the knowledge of those other workers. The Complainant could have sought to ascertain from those workers if they were treated as sub-contractors or as employees..... For these reasons 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." I conclude that the complainants could have sought to ascertain how other employees not requiring a work permit were treated. As the complainants have provided no evidence of any different treatment I find that they have been unable to establish facts to demonstrate a prima facie of discrimination.
3. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that the respondent did not discriminate against either of the complainants in relation to training, conditions of employment, other and discriminatory dismissal contrary to S.8 of the Acts on the ground of race
____________________
Hugh Lonsdale
Equality Officer
14 October 2009