THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-048
PARTIES
Mr. Marius Laurinavicius, Mr. Vytautas Mackevicius and Mr. Mindauagas Statauskas
(represented by Richard Grogan
& Associates, Solicitors)
and
Cullen Decor Limited
File Reference: EE/2006/399
EE/2007/256
Date of Issue: 16th April, 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - harassment - discriminatory dismissal
1. Dispute
1.1 These cases concerns complaints by Mr. Marius Laurinavicius, Mr. Vytautas Mackevicius and Mr. Mindaugas Statauskas, who are Lithuanian nationals, that they were discriminated against by Cullen Decor Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of access to employment, conditions of employment, training, harassment and in relation to a collective agreement. Mr. Marius Laurinavicius and Mr. Mindaugas Statauskas also claim that they were dismissed in a discriminatory manner.
2. Background
2.1 Mr. Marius Laurinavicius referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 17th October, 2006. Mr. Vytautas Mackevicius referred a complaint on 21st May, 2007. Mr. Mindaugas Statauskas referred a complaint on 17th October, 2006. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 28th 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. A written submission was received from the complainants on 31st July, 2008. Prior to the hearing of these complaints, the complainants' representative brought it to my attention that the respondent company had been "struck off" the Companies' Register on 19th March, 2008 and that it was subsequently dissolved on 16 January, 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 12th March, 2010.
3. Summary of the Complainants' case
3.1 Mr. Marius Laurinavicius, who is a Lithuanian national, was employed by the respondent as a painter from June, 2006 until 25th August, 2006. He stated that there were a number of other employees of Lithuanian and Irish origin employed by the respondent as painters during his period of employment. Mr. Laurinavicius submitted that he did not receive a written contract of employment or any health and safety documentation or training in relation to his employment. He also claims that he was not paid in accordance with Registered Employment Agreement (REA) for the Construction Industry and that he had not been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA.
3.2 Mr. Marius Laurinavicius stated that he was informed by the respondent on 25th August, 2006 that his employment was being terminated from that date. He claims that he was dismissed without any proper procedures and was not given any reason for the dismissal by the respondent. Mr. Laurinavicius stated that there was also approx. ten other employees of Lithuanian origin dismissed on this date. He stated that none of the employees who were dismissed on this date were of Irish origin and he claims that work on this site continued after his dismissal. Mr. Laurinavicius claims that he was dismissed from his employment on the grounds of his nationality.
3.3 Mr. Minduagas Statauskas, who is a Lithuanian national, was employed by the respondent as a painter from June, 2006 until 25th August, 2006. He stated that there were a number of other employees of Lithuanian and Irish origin employed by the respondent as painters during his period of employment. Mr. Statauskas submitted that he did not receive a written contract of employment or any health and safety documentation or training in relation to his employment. He also claims that he was not paid in accordance with the Registered Employment Agreement (REA) for the Construction Industry and that he had not been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA. Mr. Statauskas stated that he was paid between €250 and €400 net per week during the period of his employment with the respondent and he claims that he was informed by one of the Irish painters who was employed by the respondent that he was being paid €800 per week. He submitted that the higher rate which was being paid to this Irish worker is evidence that he was being subjected to discrimination on the grounds of his nationality in terms of his weekly rate of pay.
3.4 Mr. Statauskas stated that he was dismissed from his employment by the respondent on 25th August, 2006. He claims that he was dismissed without any proper procedures and was not given any reason for the dismissal by the respondent. Mr. Statauskas stated that when he requested a reason for the dismissal and payment of outstanding wages he was told by the owner of the respondent, Mr. X, to "f..k off you black worker" and that "he wasn't needed anymore". Mr. Statauskas stated that there was a number of other workers of Lithuanian origin dismissed on this date. He stated that none of the employees who were dismissed on this date were of Irish origin and he claims that work on this site continued after his dismissal. Mr. Statauskas claims that he was dismissed from his employment on the grounds of his nationality.
3.5 Mr. Statauskas also claims that Mr. X frequently used derogatory and degrading language towards him during the course of his employment. He claims that the respondent used language such as "you should go home to your country", "slave" and "work in your black peoples country". Mr. Statauskas stated that the respondent did not use this type of language towards the Irish workers. He submitted that this treatment constitutes harassment on the grounds of his race contrary to the Employment Equality Acts.
3.6 Mr. Vytautas Mackevicius, who is a Lithuanian national, was employed by the respondent as a painter from 7th June, 2006 until 1st February, 2007. He stated that there were a number of other employees of Lithuanian, Latvian and Irish origin employed by the respondent as painters during his period of employment. He stated that he worked on different sites to Mr. Laurinavicius and Mr. Statuskas during the course of his employment with the respondent. Mr. Mackevicius complains that he did not receive a written contract of employment in relation to his employment despite requesting this on a number of different occasions. Mr. Mackevicius stated that he worked on three different sites during the course of his employment with the respondent and he confirmed that he received health and safety induction training upon commencing work on each of these sites. He stated that this training was provided in the English language only and that it was not translated into Lithuanian. Mr. Mackevicius stated that he understood only certain parts of the training as it was not provided in his native language.
3.7 Mr. Mackevicius complains that he was not paid in accordance with the Registered Employment Agreement (REA) for the Construction Industry and that he had not been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA. He also complains that the respondent failed to pay the appropriate Social Welfare contributions in relation to his employment and he claims that as a result he encountered difficulties in obtaining social welfare benefits following the termination of his employment. He submitted that an Irish employee would have been aware of an employer's statutory obligation to make these deductions and would have insisted that his/her employer adhere to these statutory obligations. It was therefore submitted that the complainant, as a non-Irish national, has been treated less favourably than an Irish national would have been in relation to this aspect of his employment.
3.8 Mr. Mackevicius stated that on one occasion during the course of his employment the owner of the respondent, Mr. X, referred to both himself and other workers of Lithuanian origin as "slaves". He submitted that his treatment by the respondent in this regard constitutes harassment on the grounds of his nationality contrary to the Employment Equality Acts.
3.9 The complainant also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001).
4. Summary of the Respondent’s case
4.1 In a letter dated 16th September, 2008, the respondent informed the Tribunal that the company had ceased trading and it denied that it had discriminated against the complainants on the grounds of their race. The respondent did not attend, nor was it represented, at the Hearing of the complaints.
5. Conclusions of the Equality Officer
5.1 At the outset of the hearing of the complaints, the complainants' representative withdrew the complaints relating to a claim in respect of access to employment and in relation to a collective agreement. Accordingly, the issues for decision in these cases is whether or not the respondent discriminated against the complainants 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 their conditions of employment and training. I must also decide if Mr. Marius Laurinavicius and Mr. Mindaugas Statauskas were subjected to discriminatory dismissal on the grounds of race contrary to section 8 of those Acts.
5.2 Section 85A of the Employment Equality Acts, 1998 to 2008 provides as follows: "(1) 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 requires the Complainant to prove the primary facts upon which he/she relies in seeking to raise an inference of discrimination. It is only when he/she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Conditions of Employment
5.3 Firstly, I will consider the issue that has been raised by all three complainants in relation to the respondent's failure to provide them a written contract of employment which they have contended constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. In considering this issue, I note the complainants' evidence that there were workers of various nationalities employed by the respondent during their respective periods of employment, including those of Latvian, Lithuanian and Irish origin; however, the complainants were not aware if the respondent had issued any of the other employees, including those of Irish origin, engaged at the same time as them with a written contract of employment. The complainants submitted that an Irish employee would have been aware of his/her rights under employment legislation, and therefore, would have insisted that the respondent comply with it's obligations in terms of this aspect of their conditions of employment. It was therefore submitted that the Tribunal should infer that they have been subjected to less favourable treatment on the grounds of their nationality and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.4 In considering this issue, I have taken cognisance of the recent determination of the Labour Court in the case of Melbury Developments Limited and Valpeters[1]. In that case the Labour Court stated, inter alia, that:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5.5 In the present cases, I accept that the complainants have adduced evidence to suggest that they may have been treated badly by the respondent in terms of the provision of a contract of employment. However, I do not have any jurisdiction to decide whether or not the respondent was in breach of its obligations under the relevant employment legislation. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination under the Employment Equality Acts. I am therefore not satisfied that the complainants, in the present cases, have adduced any evidence from which I could reasonably conclude that they were treated less favourably than other workers of a different nationality (i.e. those of Irish origin) in terms of the respondent's failure to provide them a written contract of employment. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaints.
5.6 The next issue raised by the complainants relates to the respondent's failure to provide them with a health and safety statement and training in a language which they could understand which they have contended constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. In considering this issue, I note that both Mr. Marius Laurinavicius and Mr. Mindaugas Statauskas stated in evidence that there were workers of Lithuanian and Irish origin employed by the respondent on the sites where they worked during the period of their respective employments (both of these complainants worked on the same sites for a period of time); however, they were not aware if the respondent had issued any of the other employees, including those of Irish origin, engaged at the same time as them with a health and safety statement or training.
5.7 Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination under the Employment Equality Acts. I am therefore satisfied that neither Mr. Laurinavicius nor Mr. Statauskas have adduced any evidence from which I could reasonably conclude that they were treated less favourably than other workers of a different nationality (i.e. those of Irish origin) in terms of the respondent's failure to provide them a written contract of employment. Accordingly, I find that Mr. Laurinavicius and Mr. Statauskas have failed to establish a prima facie case of discrimination in relation to this element of their complaints.
5.8 In the case of Mr. Vytautas Mackevicius, his evidence was that he worked on three different sites during his period of employment with the respondent (he did not work on the same sites where Mr. Laurinavicius and Mr. Statauskas had worked). He stated that all of the employees, including those of Irish origin, received health and safety induction training upon commencing work on each of these sites. Mr. Mackevicius stated that this training was provided in the English language only and that it was not translated into Lithuanian. He stated that he understood only certain parts of the training as it was not provided in his native language.
5.9 In the case of 58 Complainants v Goode Concrete [2] this Tribunal held that in circumstances where an employer provides its employees with health and safety statements/training, it constitutes less favourable treatment of non-Irish employees if the employer provides them with a health an safety statement/training in English and not in a language which they can understand. In the present case, it is the complainant's uncontested evidence that the health and safety training which he received was not translated or explained to him in a language which he understood. In considering this issue, I note that Mr. Mackevicius’ command of the English language at the hearing was rather basic. I am not satisfied that he would have been able to fully understand the health and safety instruction given in English during the time in which he was in the respondent’s employment. I am satisfied that the evidence presented by the complainant in relation to this issue has been tested and I have found his evidence to be credible. In the circumstances, I am therefore satisfied that the complainant's uncontested evidence is sufficient to establish a prima facie case of discrimination on this element of his complaint. I also find that the respondent has failed to rebut that inference so raised as it did not attend, nor was it represented, at the Hearing. It follows therefore that Mr. Mackevicius is entitled to succeed in this element of his complaint.
5.10 The next issue raised by the complainants relates to the respondent's failure to pay them in accordance with the Registered Employment Agreement (REA) or to join them to the Construction Workers' Pension and Sick Pay Scheme. The complainants submit that this constitutes discriminatory treatment of them on the grounds of race contrary to the Acts. Mr. Laurinavicius and Mr. Mackevicius could not confirm whether or not the other employees (including those of Irish origin) engaged by the respondent during their periods of employment were paid in accordance with the REA or joined to the Scheme. Having regard to the evidence adduced, I am not satisfied that Mr. Laurinavicius and Mr. Mackevicius have established any facts from which it could be inferred that they were treated less favourably than other workers of a different nationality (including those of Irish origin) in terms of the manner in which the REA was applied to their conditions of employment. Accordingly, I find thatMr. Laurinavicius and Mr. Mackeviciushave failed to establish a prima facie case of discrimination in relation to this element of their complaints.
5.11 Mr. Statauskasgave evidence that that he was paid between €250 and €400 net per week during the period of his employment with the respondent and he claims that he was informed by one of the Irish painters who was employed by the respondent that he was being paid €800 per week. He submitted that the higher rate which was being paid to this Irish worker is evidence that he was being subjected to discrimination on the grounds of his nationality in terms of his weekly rate of pay. In considering this issue, I have taken cognisance of the Melbury decision where the Labour Court stated 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 the Respondent's capacity of proof. Its is also plainly within the knowledge of those other workers ....... If necessary those workers could have been required to attend as hearing and testify as to how they were treated".
5.12 It is not the practice of this Tribunal to apply the laws of evidence in a rigid manner in proceedings under these Acts, however, the requirements of basic fairness and natural justice preclude the Tribunal from accepting uncorroborated hearsay evidence as probative of a fact in issue. In the present case, the complainant did not adduce any direct evidence from the Irish comparator which he alleges was being paid a more favourable rate of pay. I am therefore satisfied that the complainant's evidence in relation to this issue amounts to no more than uncorroborated hearsay and I cannot accept this evidence as establishing a fact from which discrimination can be inferred. In the circumstances, I find that Mr. Statauskas has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
5.13 Mr. Mackevicius has also claimed that he has been subjected to discrimination on the basis that the respondent failed to deduct social welfare contributions in respect of the remuneration which he earned whilst in its employment. In considering this issue, I am not satisfied that the complainant has established any facts from which it could be inferred that he was treated less favourably than other workers of a different nationality (i.e. those of Irish origin) in terms of social welfare deductions. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of his complaint.
Harassment
5.14 The next issue that I must consider relates to the claims by Mr. Mackevicius ann Mr. Statauskas that they were subjected to harassment subjected to harassment by the respondent on the grounds of race contrary to the Acts. “Harassment” is defined in Section 14A(7)(a) of the Acts as "any form of conduct related to any of the discriminatory grounds being conduct which … has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". Section 14A(2) of the Acts states that it shall be a defence for an employer to prove that "the employer took such steps as are reasonably practicable … to prevent the person from harassing the victim or any class of persons including the victim". In the case law that has developed on harassment, this is understood to include the development and implementation of a policy on dignity at work, bullying and harassment, and its implementation in accordance with the principles of natural justice and fair procedures.
5.15 Mr. Statauskas gave evidence that he was subjected to verbal abuse of a racial nature by the respondent both during the course of his employment and on the date of his dismissal. He claims that the owner of the respondent, Mr. X, used derogatory language towards him such as "f..k off you black worker", "you should go home to your country", "slave" and "work in your black peoples' country". Mr. Mackevicius gave evidence that on one occasion during his employment Mr. X referred to both himself and other workers of Lithuanian origin as "slaves". I am satisfied that I have tested the evidence of the complainants in relation to this issue and I have found both Mr. Statauskas and Mr. Mackevicius to be credible witnesses. In the circumstances, I accept that they were subjected to verbal abuse by Mr. X during the course of their employment which constitutes harassment on the ground of race within the meaning of S. 14(7) of the Acts. Furthermore, I accept the complainants' evidence that this type of language was directed exclusively at the workers of Lithuanian origin and not at their Irish counterparts. In the circumstances, I find that the complainants' uncontested evidence is sufficient to establish a prima facie case of harassment on the ground of race. I further find that the defence of S. 14(2) is not available to the respondent, not only because the case was uncontested, but also because I found the complainants’ evidence credible that it was the owner of the respondent business himself who was the harasser. This being the case, it is clear that no steps were taken by the respondent to prevent the complainants’ harassment at any time.
Discriminatory Dismissal in relation to Mr. Laurinavicius and Mr. Statauskas
5.16 The next issue that I must consider relates to the claim by Mr. Laurinavicius and Mr. Statauskas that they were subjected to discriminatory dismissal on the grounds of their nationality. In considering this issue, I note that both of the complainants gave evidence that they were summarily dismissed by the respondent on 25th August, 2006 without any proper procedures and that they were not given any reason for their dismissal. The complainants also stated that a number of other non-Irish national workers of Lithuanian origin were dismissed on this date whereas a number of Irish employees (who were also employed as painters) were retained in employment by the respondent on the site where they had been working.
5.17 In considering this issue, I have taken note of the complainants' evidence that they were both working on the same site on the date of their dismissals and I am satisfied that the evidence adduced by both complainants is consistent and of a corroboratory nature in relation to this matter. I am satisfied that the evidence presented by the complainants in relation to this issue has been tested and I have found their evidence to be credible. In the circumstances, I am therefore satisfied that the complainants' uncontested evidence is sufficient to establish a prima facie case of discrimination on this element of their complaints. I also find that the respondent has failed to rebut that inference so raised as it did not attend, nor was it represented, at the Hearing. It follows therefore that the complainants are entitled to succeed in this element of their complaints.
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). I find that the respondent did not discriminate against Mr. Marius Laurinavicius and Mr. Mindaugas Statauskason the race ground pursuant to section 6(2)(h) of the Acts in respect of their conditions of employment and training contrary to section 8(1) of the Acts.
(ii). I find that the respondent did discriminate against Mr. Vytautas Mackevicius on the race ground pursuant to section 6(2)(h) of the Acts in respect of his conditions of employment and training contrary to section 8(1) of the Acts.
(iii). I find that the respondent did subject both Mr. Mindaugas Statauskas and Mr. Vytautas Mackevicius to harassment contrary to section 14A of the Acts.
(iv). I find that the respondent did discriminate against Mr. Marius Laurinavicius and Mr. Mindaugas Statauskas on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
6.2 In accordance with section 82 of the Employment Equality Acts, 1998 to 2008, I therefore order that the respondent:
(i) pay Mr. Vytautas Mackevicius the sum of €500 in compensation for the effects of the discrimination in relation to his terms and conditions of employment and training.
(i) pay Mr. Mindaugas Statauskas the sum of €2,000 and Mr. Vytautas Mackevicius the sum of €500 in compensation for the effects of the harassment. In deciding upon the quantum of the awards in relation to this aspect of the complainants' cases, I have taken into consideration that Mr. Statauskas was subjected to harassment on a number of different occasions during the course of his employment whereas Mr. Mackevicius was subjected to harassment on one occasion during his employment.
(ii) pay Mr. Mindaugas Statauskas the sum of €2,500 and Mr. Marius Laurinavicius the sum of €2,500 in compensation for the effects of their discriminatory dismissals.
These awards are in compensation for the distress experienced by the complainant in relation to the above matters and are not in the nature of pay, and therefore not subject to tax.
______________
Enda Murphy
Equality Officer
16th April, 2010