THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 052
PARTIES
Mr. Armands Jairgensons
(represented by Richard Grogan and Associates, Solicitors)
and
Gerry Rafferty t/a C.S.P. Buildings Services
File Reference: EE/2007/624
Date of Issue: 19th April, 2010
File references: EE/2007/624 - DEC-E2010-052
Keywords
Employment Equality Acts 1998-2008 – Sections 6 and 8 - Race - Conditions of employment - Training - Discriminatory dismissal - Section 14A - Harassment
1. Dispute
1.1 This case concerns a complaint by Mr. Armands Jairgensons (hereafter "the complainant"), who is a Latvian national, that he was subjected to discriminatory treatment and discriminatory dismissal contrary to section 6(2)(h) of the Employment Equality Acts by Gerry Rafferty t/a C.S.P Building Services (hereafter "the respondent") on the grounds of his race in terms of his conditions of employment, training and discriminatory dismissal. He also claims that he was subjected to harassment contrary to section 14A of the Acts.
2. Delegation of the complaint
2.1 The complaint was referred under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on the 26th November 2007. In accordance with her powers under section 75 of the Acts, the Director then delegated this case to me, James Kelly, an Equality Officer on the 21st July 2009 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, this is the date I commenced my investigation. A written submission was received from the complainant on the 15th September 2008 and from the respondent on the 8th March 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 18th March 2010.
3. Summary of the Complainant's case
3.1 The complainant submits that he is Latvian and that he worked for the respondent as a project supervisor between January 2007 and the 19th September 2007. He claims that he previously worked for Mr. Rafferty in his garage prior to moving to work with him on construction projects. He complains 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 did not receive pay slips and was not paid according to the Registered Employment Agreement for the Construction Industry (REA) nor was he joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA. He claims that this amounts to discriminatory treatment in relation to conditions of employment and training.
3.2 The complainant maintains that while he was working with the respondent he fell and hurt his ankle and was unable to work. He said the day after the accident he approached Mr. Rafferty, who had just returned from holidays, to inform him of the injury and that he was unable to work for a period of time. He claims that Mr. Rafferty was irate and fired him without giving him any chance to explain himself. He claims that Mr. Rafferty accused him of using the respondent's equipment for his own enterprise. The complainant stated that there was an incident where he removed building materials and other rubbish from one of the housing sites that the respondent was working on while Mr. Rafferty was away. He claims he tried to dispose of this material at a builders recycling plant. However, he claims he was informed by the staff at the recycling plant that he was not allowed to dispose of the materials there, so he left.
3.3 The complainant claims that Mr. Rafferty frequently shouted at him and blamed him for things that went wrong during the course of his employment. He claims that Mr. Rafferty would never treat the various Irish sub-contractors on the site in a similar fashion. He claims that there were no other Irish employees employed by the respondent at the time, however, no Irish worker would accept the way the respondent treated him, nor would he/she accept the conditions of his employment nor the manner of the dismissal, which he maintains was discriminatory on the grounds of his race.
3.4 The complainant also contends that this treatment arose because he is a foreign worker and that special measures should be applied to ensure he was aware of his entitlements and of the relevant procedures, he relied on the Campbell Catering -v- Rasaq[1]and 58 Named Complainants -v- Goode Concrete[2]cases. He further submits that a notional Irish Comparator would have been treated differently.
4. Summary of the Respondent's case
4.1 The respondent states that the complainant was employed as a general operative from June 2007 up to his dismissal in September 2007. The respondent disagrees with the complainant's claim that he was working with him from January 2007 and that the complainant was employed in a supervisory capacity. The respondent claims that the complainant was working in a garage up to June 2007. Mr. Rafferty refutes the claim that the respondent discriminated against the complainant. He claims that the complainant had become a friend of the family, was involved in family social functions and was introduced to Mr. Rafferty's wider social circle of friends and contacts.
4.2 The respondent states that he ran a small family owned building contractor business, which has since ceased trading since November 2009, and that Mr. Rafferty and the complainant were employed along with some other casual employees from time to time. The skilled facet of the work was sub-contracted out to other parties. The respondent claims that he did not have much experience in this business and accordingly, was unaware of his legal obligations in relation to many aspects and accordingly, he had no policies or procedures in place. He does not dispute that he did not provide the complainant or any of his employees with written contracts of employment, health and safety documentation/training or pay-slips. He also claims that he was unaware of the Registered Employment Agreement for the Construction Industry and that he failed to join the complainant to the Construction Workers Pension and Sick Pay Scheme.
4.3 Mr. Rafferty did say that he had booked "Safe Pass Health and Safety Awareness Training"for both himself and the complainant however, as they were too busy at the time they had to cancel. The respondent also claims that the complainant had requested 3 payslips for a bank loan application and he claims that the complainant was provided with these by the respondent's accountant.
4.4 The respondent claims that the complainant was treated very well at all times. He claims that the reason the complainant's employment arrangement was terminated was as a result of a breach of trust, where the complainant repeatedly lied to the respondent about a situation while Mr. Rafferty was away on holidays. He claims that he asked the complainant to tell the truth in relation to the attempt to recycle material and rubbish using the respondent's truck. He claims that the complainant tried to "make money on the side" using his equipment and then lied and tried to cover up. He claims that he could no longer trust the complainant and was forced to let him go. He disputes that the dismissal was in any way connected to his race.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case are whether or not the respondent discriminated against the complainant on the grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 and 14A of those Acts as regards his conditions of employment and training, discriminatory dismissal and harassment.
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 relies in seeking to raise an inference of discrimination. It is only when he 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 the case cannot succeed. In reaching my decision, I have taken into consideration all of the submissions, written and oral, made by the parties.
Conditions of Employment
5.3 Firstly, I will consider the issues that have been raised by the complainant in relation to his conditions of employment and training which he contended constitutes unlawful discrimination of him on the grounds of race contrary to the Acts, namely:
· the respondent's failure to provide him with a written contract of employment, payslips and health & safety training/documentation in a language which he could understand.
· 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.
5.4 In considering these issues, I note that the complainant stated in evidence that there were workers of various different nationalities employed by the respondent at that time, including those of Latvian, Lithuanian and Slovakian origin. The complainant has stated that he was not aware if the respondent had issued any of the other employees engaged at the same time as him with a written contract of employment, payslips or health & safety training/documentation. Neither could he confirm if any of the other employees were paid in accordance with the REA for the Construction Industry or if they had been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA. The complainant stated that the respondent did not employ any other workers of Irish origin during that time. However, he claims that a notional Irish employee would have been aware of his/her rights under both employment and health & safety legislation, and therefore, would have insisted that the respondent comply with his legal obligations in relation to same. It was submitted by the complainant that the Tribunal should infer that he was subjected to less favourable treatment on the grounds of his race and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.5 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[3]. 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."
5.6 In the present case, I accept that the complainant has adduced evidence to suggest that he may have been treated badly by the respondent in terms of the aforementioned elements of his conditions of employment, pay and health & safety training/documentation. However, I do not have any jurisdiction to decide whether or not the respondent was in breach of his obligations under the relevant employment and/or health and safety legislation. Whilst I appreciate that an employer who employs non-Irish nationals cannot presume to defend itself from discrimination by simply claiming that it treated everyone in the same less favourable fashion, the issue of a notional comparator can only become an issue when evidence to support such an approach has been presented to this Tribunal. 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. Accordingly, the complainant must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to his race in order to raise an inference of discrimination.
5.7 Having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than an Irish person would have been, in similar circumstances, in relation to the aforementioned aspects of the conditions of employment, pay and health & safety training/documentation. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to these elements of the complaint.
Discriminatory Dismissal
5.8 The next element of the complainant's claim concerns the allegations that he was subjected to a discriminatory dismissal by the respondent on the grounds of his race. I also note that the complainant claims that he was dismissed without proper procedure. Having considered the evidence I am satisfied on the balance of probabilities that there was a break down in the relationship between the parties. However, I am satisfied from the evidence adduced at the hearing that this was because of an incident in relation to a work dispute, which, for whatever reason, the complainant did not tell the truth when questioned by the respondent. In considering this issue, I accept the complainant's evidence that he was dismissed on this date. However, I am not satisfied that he has adduced any evidence to substantiate the claims that he was dismissed because of his race. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of race, the complainant must be able to demonstrate evidence of less favourable treatment and this treatment must be linked to his race. Based on the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that the termination of his employment was in any way influenced by the complainant's race. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of his race.
Harassment
5.9 I note the complainant's claim that he was shouted at and often blamed for things that went wrong while on site. The complainant claims that this was because he was Latvian. Whereas, the respondent claims that the complainant was treated fairly and held in high regard, that there was no shouting or any other problem prior to the incident that led to the dismissal. I am satisfied that the complainant did not present any evidence from which I could reasonably conclude that he was subjected to harassment by the respondent within the meaning of section 14A of the Acts. Accordingly, I am satisfied that the complainant has failed to establish a prima facie case of harassment contrary to the Acts.
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 find that the respondent did not discriminate against the complainant on the race ground. Therefore, the complaint of less favourable treatment in relation to conditions of employment and training fails.
· I find that the respondent did not discriminatorily dismiss the complainant on the race ground. Therefore, the complaint of discriminatory dismissal fails.
· I find that the respondent did not subject the complainant to harassment on the race ground. Therefore, the complaint of harassment fails.
______________
James Kelly
Equality Officer
19th April, 2010