Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-043
PARTIES
Zimblys
(Represented by Grogan and Associates Solicitors)
- V -
Caldale Construction Ltd.
File references: EE/2007/285
Date of issue: 08 April 2010
File references: EE/2007/285 - DEC-E2010-043
Keywords
Employment Equality Acts 1998-2008 – Discriminatory Treatment - Race - Condition of employment - Pay - Harassment - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Tomas Zimblys (hereafter "the complainant") that he was subjected to discriminatory treatment and harassment contrary to the Employment Equality Acts by Caldale Construction Ltd. (hereafter "the respondent") on the grounds of his race.
1.2. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 01 June 2007 under the Employment Equality Acts. This claim was made on the race ground. In accordance with her powers under section 75 of the Acts, the Director then delegated this case to Tara Coogan- an Equality Officer - on 5 May 2009 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, my investigation commenced on this date. As required by Section 79(1) and as part of my investigation, I scheduled a hearing for 24 November 2009. Due to industrial action and the respondent's representative coming off record, the hearing was rescheduled for 10 March 2010. An independent interpreter attended the hearing.
2. Case for the complainant
2.1. The complainant, a Lithuanian national, stated that he started working for the respondent in 2003 clearing up sites, etc. He stated that in 2005 his job role changed to that of a handyman. He stated that in this capacity he was expected to carry out all kind of building work. The complainant's employment ended in January 2007.
2.2. The complainant submitted that he was not provided with a contract of employment nor provided with any health and safety training in the complainant's own language. It was submitted that the complainant was asked to work as a general operative on sites managed by another named company. The complainant submitted that the respondent supplied workers for the named company.
2.3. The complainant submitted that his working day would usually start a 8 am and finish at 5 pm. He stated that he took breaks between 10 and 10.30 am and at 1 to 1.30 pm. He submitted that these breaks were taken alongside other workers. The complainant submitted that sometimes when the site was very busy he and his colleagues would not take any breaks at all.
2.4. The complainant submitted that he and other non-national workers were expected to work overtime whenever the need occurred. He submitted that the difference of treatment in relation to this matter was that while Irish workers were provided with a choice, he and other non-nationals were ordered to work overtime. The complainant submitted that it was normal for the foreman to tell him that: "you either do the work or you can go". The complainant reiterated that he believed that Irish workers had more choice about their hours and that they were never asked to work between sites on the same day. The complainant submitted that he and an another Lithuanian national were the only workers who were expected to drive between different sites to carry out duties. The complainant submitted that on such days he would have received instructions from the foreman over the phone. The complainant submitted that he was not paid mileage for the journeys but stated that he received some money for petrol. The complainant submitted that he left his position with the respondent because the foreman told him to go and work at another site despite the fact that the complainant's car had been stolen a week previously. This, it was submitted, made it impossible for the complainant to travel to the other site. The complainant submitted that when he told the foreman about his car having being stolen, the foreman still insisted that he ought to go to the other site. It was submitted that a notional Irish comparator would not have been so treated and that the foreman could have asked another worker to travel to the site.
2.5. The complainant submitted that he was not paid for sick days and that he was only paid 2 weeks annual leave. These two weeks were inclusive of Christmas and Easter public holidays.
2.6. The complainant submitted that he was not informed of what his rate of pay was. He stated that when he started he was paid €65 euro per day and by the time he left his employment he was in receipt of approximately €100 euro net a day. It was submitted that the rates of pay were contrary to a Registered Employment Agreement.
2.7. It was submitted that the complainant was harassed contrary to the Acts on the ground of his nationality. The complainant submitted that it was often jokingly said to him by Irish workers "you Lithuanian, go back to where you came from" or "if you don't work, you can go home then". It was submitted that the manner in which the complainant was treated and spoken to constituted harassment contrary to the Acts.
2.8. The complainant wishes to rely on the authority of 58 named Complainants v. Goode Concrete Ltd (DEC-E2008-020) and Campbell Catering Limited v. Rasaq (EED048).
3. Case for the respondent
3.1. The respondent did not attend the hearing. I am satisfied that proper notification about the hearing was served on the company.
3.2. The respondent had forwarded a written submission with a replies to notice for particulars, a copy of a Dignity in the Workplace Charter, A Policy on the Prevention of Bullying, Harassment, Discrimination and Sexual Harassment and A Safety Statement.
3.3. According to the EE3 form (reply by respondent) the respondent submitted that the complainant was paid above the construction industry rates, was not asked to work excessive hours and received appropriate breaks. It was submitted that often when the complainant missed work he was nevertheless paid. It was submitted that the terms of employment were verbally agreed and that all employers were given instructions by a named foreman. It was submitted that the complainant did have a Safe Pass.
3.4. It was submitted in writing that the complainant, in common with all the other labourers, was aware that he would be required to transfer to whatever site could offer work. The submission stated that the complainant was on occasion asked to work overtime and that in such cases he was paid double time.
3.5. The respondent denied in their submission that any statement such as "Go back to Lithuania" or such were uttered.
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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. The complainant submitted that he received no information in writing from the respondent. It was submitted that no written contract of employment was provided and this tallies with the respondent's written submission. I was presented with no evidence to support an argument that the treatment that the complainant submitted he received in relation to a contract of employment was in any way linked to his race ground. Any investigation into another type of failure or omission concerning a worker's right to employment information is outside this Tribunal's jurisdiction. The facts of this case clearly distinguish it from the facts considered in Goode and Cambell catering.
4.3. I have been presented with no evidence to support an argument that the fact that the respondent supplied workers to another named construction company created less favourable treatment/harassment on the race ground contrary to the Acts. I am satisfied that no other company was named as a respondent.
4.4. In relation to the claim about working hours and breaks. I have not been presented with any evidence to support an inference that such treatment was because of the complainant's nationality. I note from the complainant's direct evidence that breaks were taken jointly with other workers. This means that the complainant's own evidence excludes a comparator. Any other breaches that may have taken place in relation to legislation governing breaks and working time is outside the jurisdiction of this Tribunal.
4.5. I have been presented with no evidence to support an argument that the complainant's pay conditions were less favourable than any other worker's conditions were regardless of their nationality. I note that the respondent's representative had forwarded pay slips to the complainant's representative prior to the hearing. While I note that the complainant stated that he had never been given pay slips during his employment, no evidence was presented to support an argument that other nationalities working with the respondent were in receipt of pay slips. Furthermore, I note the issue of mileage. I have been presented with no evidence to suggest that other nationalities were paid mileage in manner that would have been more favourable than the 'petrol money' the complainant submitted that he received. I also note that the complainant was being paid a hourly rate while he was traveling. No evidence was provided to support any argument that the complainant's private car and the fact that it was stolen is a matter for this Tribunal to consider.
4.6. I have been presented with no evidence that other nationalities received health and safety training in any other language than English. Nor have I been presented with any evidence to support an argument that only Irish persons received health and safety training. It is clear from the complainant's own evidence that he was able to take instructions directly from the Irish foreman. It is equally clear that the complainant's level of English was good enough for him to receive instructions over the phone. I have been presented with no evidence that may give rise to a positive duty to provide such training in the complainant's language.
4.7. The pay receipts submitted to the hearing by the complainant's representative contradict the complainant's claims about his annual leave entitlements. According to the pay slips, the complainant was paid for every week of the year. This suggests that the complainant was paid during his holiday period/public holidays. I have been presented with no evidence to support an argument that the complainant was in receipt of any less favourable annual leave entitlement than any other worker of a different nationality working for the respondent would have been.
4.8. The complainant did not present any evidence to support an argument that he was excluded from a pension scheme and that other nationalities working for the respondent were so included.
4.9. I note that the complainant stated that he often was given instructions by his Irish foreman that were issued like 'an order' whereas Irish workers were consulted about matters, that is, they were asked if they wanted to work longer hours. While I note that complainant described some of these comments from his co-workers as "people joking around" I accept that - as a result of these comments and the manner in which they were given by the foreman - the complainant believed that he had no choice when it came to deciding whether to work overtime or not. I am satisfied that such utterances as "go where you came from", "Go back to Lithuania" and what the complainant described as threats such as "if you don't want to do the work Lithuanian, then don't bother coming back" were used to create a hostile working environment contrary to the Acts. As the respondent did not attend the hearing, this inference has not been rebutted. I note that the complainant submitted that he did not notify the respondent about discriminatory comments he claimed his colleagues made to him because he submitted that he was not aware of any existing policies. While I note that the respondent had submitted a written policy in relation to harassment prior to the hearing, this could not be in any way scrutinised and therefore has little, if any, evidential value.
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 harass the complainant on the race ground. Therefore, in accordance with section 82(4)(b), I order the respondent to pay the complainant €2000 in compensation for the effects of the harassment.
_____________
Tara Coogan
Equality Officer
8 April 2010