THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2009 - 094
PARTIES
Mr. Eduard Loginov
(represented by Richard Grogan & Associates, Solicitors)
and
D. O'Brien Developments Ltd
(represented by O'Rourke Reid Solicitors)
File References: EE/2006/501
EE/2006/358
Date of Issue: 22October 2009
Claim
1.1. The case concerns a claim by Mr Eduard Loginov that D. O'Brien Development Ltd discriminated against him on the ground of race contrary to Section(s) 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of conditions of employment, harassment, equal pay and in relation to a collective agreement, and that he was victimisatorily dismissed after lodging a complaint with the Tribunal.
1.2. The complainant originally referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 24 July 2006. This complaint was deemed inadmissible and was subsequently closed. On 3 October 2006, the complainant referred a complaint of victimisatory dismissal relating to his earlier complaint [EE/2006/351]. Following correspondence with the Tribunal in this matter, the complainant re-lodged his earlier complaint of discriminatory treatment on 21 December 2006 [EE/2006/501]. A submission was received from the complainant on 23 July 2008. A submission was received from the respondent on 15 December 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 cases on 30 September 2009.
2. Summary of the Complainant's Written Submission
2.1. The complainant complains that he was not paid in accordance with the registered employment agreement for the construction industry, that he was not entered into the CIF pension scheme, that he was not joined into a union as stipulated by the REA, and that he received no contract of employment or health and safety training. No details were given in the complainant's submission as regards the complainant's complaint of harassment.
2.2. With regard to his complaint of victimisatory dismissal, the complainant contends that he mailed form EE2, relating to his original complaint before the Tribunal (see also paragraph 1.2. above), to his employer on 17 July 2006. On 21 July 2006, his employment with the respondent was terminated. The complainant contends that this termination was a victimisatory dismissal.
3. Summary of the Respondent's Written Submission
3.1. With regard to the complainant's complaint of discriminatory treatment, the respondent denies treating the complainant less favourably than other employees. In particular, the respondent asserts that the complainant had a high level of fluency in English and that he had no problem understanding the health and safety statement that was displayed in the canteen and the site office.
3.2. With regard to the complainant's complaint of equal pay, the respondent contends that the complainant has not identified a comparator who does like work with the complainant. The respondent further submits that the complainant was registered with the Construction Federation Operatives Pension Scheme, and submitted documentation of payments made on behalf of the complainant in this regard.
3.3. Overall, the respondent contends that the complainant has not established a prima facie case with regard to any element of his complaint of discriminatory treatment.
3.4. The respondent also denies victimisatorily dismissing the complainant. In this regard, the respondent submits that it did not receive the EE2 form until 24 July 2006, the date being the Monday after the complainant's employment was terminated on Friday, 21 July 2006. It is the respondent's contention that the complainant's employment was ended because the construction project he was working on was coming to a close.
4. Conclusions of the Equality Officer
4.1. During the hearing of the complaint, the complainant's representative withdrew the complaints relating to equal pay, in respect of a collective agreement, and the complaint of harassment.
4.2. Accordingly, the remaining issues for decision in this case are whether the complainant was discriminated against on the ground of race within the meaning of the Acts; and whether he was victimisatorily dismissed pursuant to lodging his original complaint with the Tribunal.
4.3. 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.
4.4. The complainant had an intermediate standard of English and I partly questioned him about his experiences in the employment of the respondent with the assistance of an interpreter. The complainant is an ethnic Russian of Latvian nationality. He worked for the respondent first as a general operative, then as a slinger/signaller. These are trained workers who assist a cranedriver with securing and directing loads, working on the ground in constant communication with the driver.
4.5. According to the complainant, the respondent employed three Irish workers, four or five workers from Poland, two Lithuanians and the complainant. The complainant stated that there was no difference in treatment between any of the workers on site. He stated that only transient interpersonal difficulties would occur, but only within an extent he rated as normal for any workplace. He expressly stated that he did not know anybody who had a written contract of employment. He did not make any further submissions on the issue of health and safety training, and neither did his legal representative.
4.6. Based on the complainant's evidence, I do not find that the complainant has established a prima facie case of less favourable treatment in his terms and conditions of employment.
4.7. I further wish to note evidence from the respondent, that it paid for, and supported the complainant, in qualifying as a slinger/signaller. FETAC certificates for the five employees who undertook the training were produced at the hearing, and these employees were three Irish workers, one worker who by his name would appear to be of Hungarian nationality, and the complainant. Mr O'Brien, for the respondent company, further stated that when the complainant wished to qualify as a teleporter driver (a qualification he achieved), that he was permitted to practice for his exams with the company-owned teleporter. Mr O'Brien expressly noted that he found the complainant to be a good and ambitious worker, and that he was happy to support him in his drive to gain additional qualifications. The complainant or his representative did not contest this evidence. These facts further underline an overall impression that the respondent treated his workers without discrimination.
4.8. I now turn to the complainant's complaint of victimisatory dismissal. It was undisputed that the EE2 form, advising the respondent of the complaint filed against it and requesting further information, was sent on 17 July 2006. The remaining evidence on the matter differs between the parties.
4.9. The complainant's evidence on this was that he had asked for holidays and that the foreman had granted them without a problem. According to the complainant, his last working day was 21 July 2006, he left on a plane for Latvia the next day, and when he returned on 7 or 8 August, he found a letter with a P45 in it, and no further explanations. He contends that this amounts to victimisatory dismissal. The complainant's representative further argued that in an orderly dismissal situation, a final payslip noting final pay and holiday entitlements should have been issued.
4.10. It is the respondent's case that the construction project the complainant was hired on was coming to an end. The hotel the respondent had been building was opening for business on 2 August 2006. According to the respondent, the complainant had been advised on 7 July 2006 that the project was wrapping up. The crane was removed from the site on 20 June, and there was no further slinging/signalling work for the complainant and the other workers, who reverted to general operative duties for the final phase of the project. The complainant asked for, and was granted leave, and his final payslip was issued on Friday 14 July 2006, with holiday pay and other outstanding entitlements properly calculated. Copies of the payslip and of the final paycheque issued to the complainant were produced in evidence. The final paycheque is dated "12/7/2006". The payslip is annotated by hand with the complainant's additional entitlements, and a note saying "employment terminated".
4.11. I am satisfied, based on the evidence described in the paragraph above, that the decision to terminate the complainant's employment with the respondent was taken prior to the lodging of the complainant's complaint with the Tribunal, and was carried out in an orderly fashion. Therefore no prima facie case of victimisatory dismissal arises.
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 the complainant on the ground of race, in his terms and conditions of employment, contrary to S. 8(1) of the Acts and
(ii) the respondent did not victimisatorily dismiss the complainant contrary to S. 74(2) of the Acts.
________________________
Stephen Bonnlander
Equality Officer
22 October 2009