THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 060
PARTIES
Mr Laimutis Stilpa
(represented by Richard Grogan and Associates, Solicitors)
and
Alexis Fitzgerald Ltd.
(represented by Ms Mary Honan, B.L., instructed by McCartan and Burke, Solicitors)
File Reference: EE/2007/303
Date of Issue: 30th April 2010
Claim
1.1. The case concerns a claim by Mr Laimutis Stilpa that Alexis Fitzgerald Ltd. discriminated against him on the ground of his nationality as defined by the race ground contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of access to employment, conditions of employment, discriminatory dismissal and harassment.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 19 June 2007. A submission was received from the complainant on 31 July 2008. A submission was received from the respondent on 13 October 2008. On 15 July 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case 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 22 April 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that he received no contract of employment and no health and safety information, that he was not paid in accordance with the Registered Employment Agreement (REA) for the Construction Industry, that he was not enrolled in the relevant pension scheme, and that he was dismissed without proper procedures. He further contends that the manner in which he was treated constitutes harassment within the meaning of the Acts.
3. Summary of the Respondent's Written Submission
3.1. The respondent contends that the complainant, in his submission, has not established a prima facie case of less favourable treatment compared to another worker of different race or nationality, and that therefore it has no case to answer. The respondent further contends that the matter of furnishing a contract of employment to the complainant has already been addressed by a Rights Commissioner. It denies dismissing the complainant without proper procedures.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against, discriminatorily dismissed and harassed on the ground of race within the meaning of the Acts.
4.2. 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.
4.3. At the hearing of the complaint, the representative of the complainant withdrew the complaints relating to the REA and to harassment. No arguments or evidence were put forward on the matter of enrolment in the pension scheme. I therefore find that the complainant has not established a prima facie case with regard to these matters and that this part of his complaint must fail.
4.4. The complainant is Lithuanian and worked for the respondent from September 2006 until April 2007 as a general operative. There was no dispute that Irish workers and workers from a number of other nationalities, among them Romanians and Lithuanians, were in the employment of the respondent at the material time. The complainant was unaware of any of the respondent's workers receiving a contract of employment. The respondent stated that workers were not furnished with contracts of employment. Accordingly, I find that the issue of less favourable treatment of the complainant on grounds of race, with regard to the provision of a contract of employment does not arise and that this part of his complaint must fail.
4.5. With regard to the provision of health and safety information, the complainant stated in evidence that he was not aware it was provided. The respondent stated that a health and safety handbook was provided to staff, and that an outside contracted company conducted regular meetings with all staff on health and safety matters. The handbook was submitted in evidence. From the respondent's evidence, I am satisfied that all staff had access to health and safety information, and that non-Irish staff were not treated less favourably in this regard. Furthermore, the respondent's foreman, Mr A., stated that he had hired the complainant partly because of his good English, and that he was satisfied the complainant was able to understand health and safety information imparted to him. At the hearing of the complaint, the complainant availed of the services of an interpreter to translate his oral evidence. However, I am satisfied that he understood questions put to him by his own representative and by counsel, and that his ability to understand spoken English is good. For all of these reasons, I find that the issue of less favourable treatment of the complainant with regard to the translation of health and safety information into a language he is competent is does not arise either. Accordingly, this part of his complaint must fail.
4.6. Turning to the complainant's complaint of discriminatory dismissal, it was the complainant's case that Mr A simply him told to "f*** off". This was disputed by Mr A., who said that he did not use such language with workers in general, and that he especially endeavoured to be gentle when he had to let a worker go, as he was aware that their livelihood was taken away. According to the complainant, he was told so on a Friday and when he came in Monday, two new Romanian workers were working for the respondent. However, under cross-examination he stated that he did not meet these Romanians, did not know their names, and was told about them from someone else.
4.7. The respondent disputes that said Romanian workers were taken on. Furthermore, it was disputed that the complainant was let go without procedures, and stated that the complainant received one week's notice, chose to work out one day of his notice, and was paid accordingly.
4.8. With regard to the reasons for the termination of the complainant's employment, it is the respondent's case that the complainant was let go due to a fall-off in business. The respondent's director, Mr B., explained in evidence that a weekly meeting was held to review staffing levels, and that people were let go when they were no longer needed in their roles. However, the foreman, Mr A., was permitted to state a case for specific workers to be kept on, and it was stated that the complainant had been kept in the respondent's employment contrary to the "last in, first out" rule, because Mr A. held the complainant in high esteem. Mr A, in direct evidence, stated that in his opinion, the complainant had been a "decent bloke to work with and a good worker". Mr A. confirmed that he had high regard for the complainant.
4.9. The respondent's evidence was underpinned by a document which the respondent produced in evidence, which showed all redundancies from January to December 2007 in date order. There is no evidence from that document that a discriminatory pattern of redundancy for non-Irish workers existed. With regard to the complainant's case, I note that he as let go after an Irish worker, who had more than a full year's more service than the complainant, had his employment terminated. With regard to the specific circumstances attaching to the complainant's dismissal, I prefer the evidence of the respondent. Accordingly, I find that the issue of the complainant's discriminatory dismissal does not arise, either by discriminatory selection for redundancy or otherwise, and that this part of his complaint must fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate against, or discriminatorily dismiss, the complainant on the ground of race pursuant to S. (6)(2)(h) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
30 April 2010