THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009 – 074
PARTIES
Mr. Ritvars Bozs, Mr Marius Sabaliauskas, Mr Robertas Sabaliauskas, Mr Robert Kocian, Mr Grazvydas Jarasius and Mr Robertas Jurelevicius
(Represented by Richard Grogan & Associates, Solicitors)
and
Damoli Construction Solutions Ltd (in liquidation) and Mr Damien Brennan
File References: EE/2006/165
EE/2006/266
EE/2006/312
EE/2006/340
Date of Issue: 3 September 2009
Claim
The case concerns a claim by Mr Bozs, Mr Kocian, Mr Jarasius, Mr Jurelevicius and Mssrs Sabaliauskas that Damoli Construction Solutions Ltd., and Mr Damien Brennan, discriminated against them on the ground of race contrary to Section(s) 6(2)(h) of the Employment Equality Acts 1998 to 2004, in terms of access to employment, conditions of employment, discriminatory dismissal and in relation to a collective agreement.
Mr Bozs referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 22 May 2006. Mr Kocian and Mr Jurelevicius referred a complaint on 28 June 2006. Mr Robertas Sabaliauskas and Mr Jarasius referred a complaint on 24 July 2006. Mr Marius Sabaliauskas referred a complaint on 20 September 2006. On 13 November 2008, in accordance with her powers under S. 75 of the Acts, the Director delegated the 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 15 July 2009. A submission was received from the complainants on 19 December 2007. No submission was received from the respondent. The respondent’s liquidator attended the hearing of the complaint, but contested only certain aspects of the case. Additional evidence was requested from the liquidator at the hearing and received on 4 August 2009.
Summary of the Complainants’ Written Submissions
Mr Bozs complains that he was not paid in accordance with the registered employment agreement for the construction industry; that he received a lower rate of pay because he was Latvian, that he received no health and safety training, and that his employment was terminated because he was Latvian.
Mr Kocian complains that he was not paid in accordance with the registered employment agreement for the construction industry, that his terms and conditions of employment did not conform to the REA, that he received no health and safety training, and that he was dismissed without proper procedures. He did not make any submission in relation to access to employment.
Mr Jurelevicius complains that he was not paid in accordance with the registered employment agreement for the construction industry, that his terms and conditions of employment did not conform to the REA, that he received no health and safety training, and that he was dismissed without proper procedures. He did not make any submission in relation to access to employment.
Mr Robertas Sabaliauskas complains that he was not paid in accordance with the registered employment agreement for the construction industry and that his terms and conditions of employment did not conform to the REA and that he received no health and safety training. He did not make any submission in relation to access to employment.
Mr Jarasius complains that he was not paid in accordance with the registered employment agreement for the construction industry, that he received no health and safety training, and that his terms and conditions of employment did not conform to the REA. He did not make any submission in relation to access to employment.
Mr Marius Sabaliauskas complains that he was not paid in accordance with the registered employment agreement for the construction industry, that he received no health and safety training, and that he was dismissed without proper procedures.
Summary of the Respondent’s Written Submission
As noted above, no submission was received from the respondent.
Conclusions of the Equality Officer
The issue for decision in this case is whether the complainants were discriminated against, and discriminatorily dismissed as the case may be, on the ground of their race within the meaning of the Acts.
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.
Mr Bozs and Mr Marius Sabaliauskas did not appear at the hearing of the complaint. Accordingly, I find that they have not established a prima facie case in relation to any of the above complaints, and that their cases therefore fail.
At the hearing, the complainant’s representative withdrew the complainants’ complaint in relation to a collective agreement, and, for the cases of Mr Robertas Sabaliauskas, Mr Jurelevicius, Mr Kocian and Mr Jarasius, the complaint with regard to access to employment.
Nevertheless, the representative of the complainants submitted in his closing arguments that since the complainants were not paid in accordance with the Registered Employment Agreement (REA) for the construction industry, a case of less favourable treatment under the Acts arises. He expressly stated that he was not making a claim for equal pay within the meaning of the Acts.
An employer’s failure to pay workers according to the terms of a collective agreement does not constitute unequal pay within the meaning of the Acts. Furthermore, at no time up to the point of the closing submission had a written complaint under the equal pay provisions of the Acts made to the Tribunal in relation to the complainants, nor have named comparators been identified who are alleged to have performed like work with each of the complainants and are alleged to have received different remuneration for their work. I therefore find that there is no valid complaint of equal pay before the Tribunal, and that I do not have jurisdiction to deal with the circumstances referred to in the representative’s statement.
The complainants’ representative further submitted that the respondent’s alleged failure to comply with the requirements of the REA should be interpreted in the light of the Labour Court decision ED024, A Company v. A Worker, where the Court found that “on balance of probabilities the treatment of the worker […] and the almost complete non-implementation of relevant legislation, was due to the fact that it regarded the worker as someone of a different nationality, who would not have the capability to stand on their legal rights […]”, and that this situation would not apply to an Irish employee who could possibly “seek support in making their decision from advisory services, family, understanding of the structure and the interactions of the labour market, financial support from the state, to name but a few.”
It is true that a wide-ranging breach of relevant employment legislation, while not in itself constituting a prima facie case of less favourable treatment under the protected grounds, can support an inference that discrimination has occurred, along the line of reasoning as expounded by the Court. However, I find that in the instant case, Irish comparators were available in the shape of the Irish workers who were employed by the respondent until the end of 2005, and that it is up the complainants to adduce evidence that shows less favourable treatment compared to these Irish workers, including a potentially selective breach of employment rights on account of the complainants’ nationality. I therefore propose to examine the complainants’ evidence from this perspective.
None of the complainants were in a position to show that the respondent’s Irish workers were paid according to the REA, or that they were entered into the appropriate pension scheme. All complainants who were present at the hearing of the complaint said that they were not aware of the situation of the respondent’s Irish workers. The only evidence adduced that shed some light on this matter came from the respondent’s liquidator, who was in attendance. It was documentation that showed that none of the respondent’s workers, whether Irish or non-Irish nationals, were entered into the pension scheme. The available evidence does not give rise to an assumption that the respondent implemented the REA for the Construction Industry for his Irish workers, but did not do so for his non-Irish workers. Accordingly, I find that the complainants have not established a prima facie case in respect of less favourable treatment in the implementation of the REA.
With regard to the provision of health and safety information, all complainants gave evidence that they were in possession of the relevant FAS SafePasses and that they were given health and safety information on site, and provided in translation as necessary. I therefore find that the complainants have not established a prima facie case with regard to less favourable treatment in the provision of health and safety information.
Mr Robert Kocian, who is Slovakian, also stated in his evidence that discipline was unevenly enforced: when the respondent’s Irish workers worked slovenly, it was tolerated by supervisors, whereas when non-national workers worked slovenly or were perceived to do so, they were disciplined. Mr Kocian stated specifically that he was “screamed at” on such occasions in a way Irish workers were not. Mr Kocian did not seek to allege that the screaming contained negative or dismissive elements related to his nationality.
I found Mr Kocian a cogent and credible witness and accept that this aggressive enforcement of discipline happened to him as described, and that the respondent’s Irish workers were not disciplined in the same manner. Furthermore, the respondent’s liquidator did not seek to challenge Mr Kocian’s evidence. I therefore find that Mr Kocian has established a prima facie case of less favourable treatment on the ground of his nationality in the manner in which he was disciplined, which has not been rebutted.
Mr Kocian and Mr Jurelevicius also made complaints of discriminatory dismissal on the ground of their nationality.
Mr Kocian stated that he was told not to come to work while working on a construction project in Limerick prison, whereas others continued to work at the Limerick prison site. According to Mr Kocian, after a week he was told there was still no work for him, and to get another job. He requested his P45 and received it three weeks later.
According to the complainant’s own evidence, it would appear that his employment was terminated because the respondent had no further work for him. I am not satisfied that Mr Kocian has established a prima facie case that he was dismissed from the respondent’s employment because of his nationality.
In his evidence, Mr Jurelevicius specified that after working for the respondent for one year, he was told to stay at home. He stated that six or seven workers, all Lithuanian, Latvian or Slovak, were laid off at the time. Mr Jurelevicius is Lithuanian. He also said that he was aware that others were continuing to work at the respondent’s Blanchardstown site.
In light of the fact that other workers of a variety of nationalities had their employment terminated at the same time as Mr Jurelevicius, I find that the complainant has not established a prima facie case that he was dismissed on the ground of his nationality.
Decision
Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) The respondent did not discriminate against Mr Ritvars Bozs and Mr Marius Sabaliauskas on the ground of race pursuant to S. 6(2)(h) of the Acts, in respect of their terms and conditions of employment contrary to S. 8(1) of the Acts, or in respect of discriminatory dismissal contrary to S. 8(6) of the Acts.
(ii) The respondent did not discriminate against Mr Robertas Sabaliauskas, Mr Grazvydas Jarasius and Mr Robertas Jurelevicius on the ground of race pursuant to S. 6(2)(h) of the Acts, in respect of their terms and conditions of employment contrary to S. 8(1) of the Acts.
(iii) The respondent did discriminate against Mr Robert Kocian on the ground of race pursuant to S. 6(2)(h) of the Acts, in respect of his terms and conditions of employment contrary to S. 8(1) of the Acts, by enforcing discipline in a discriminatory manner.
(iv) The respondent did not discriminate against Mr Robert Kocian and Mr Robertas Jurelevicius on the ground of race pursuant to S. 6(2)(h) of the Acts, or in respect of discriminatory dismissal contrary to S. 8(6) of the Acts.
In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay Mr Robert Kocian €3000 in compensation for the effects of the discriminatory treatment suffered. This award is in compensation for the distress experienced by the complainant in relation to the above matter, and is not in the nature of pay, and therefore not subject to tax
________________________
Stephen Bonnlander
Equality Officer
3 September 2009