THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-237
PARTIES
Sergie Tkatseiko
(Represented by Richard Grogan & Associates, Solicitors)
-V-
Gel Technologies Limi
File Reference: EE/2007/540
Date of Issue: 01/12/2010
Keywords
Employment Equality Acts 1998-2008, Section 6(1) - less favourable treatment , - Section 6(2)(h) - Race, Section 8 - conditions of employment, dismissal, Section 14A - harassment, prima facie case.
1. Dispute
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1), and 6(2) (h) of the Employment Equality Acts 1998-2008 and contrary to section 8 in relation to his conditions of employment. He also alleges that he was harassed contrary to section 14A and that his dismissal was discriminatory and contrary to section 8(6)(c) of the Acts.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 15th of October 2007 alleging that the respondent discriminated against him contrary to the Acts. In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 13th May, 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 3rd October 2008 and no response was received from the respondent. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 17th August , 2010 and the last correspondence was received on 28th September 2010.
3. Summary of the Complainant's Case
3.1 The complainant is an Estonian national and was employed by the respondent as a Broadband installer from the 15th January 2007 until 14th of August 2008. There were about 30 employees and less than half of them were Irish, the remainder were mainly from Poland Lithuania. The complainant's case is that the respondent discriminated against him in relation to his conditions of employment in that he failed to provide him with a written contract of employment; the van provided to him was in bad condition and was not taxed; he did not receive holiday pay or his final week's pay. He also submits that his dismissal was discriminatory in that no procedures were applied to his dismissal he was simply told that there was no work for him. He said that he was dismissed on the day he was due to go on holidays. He submitted that this was significant because he believes the employer did not want to pay him for holidays. After his holidays he returned to the company to get his holiday pay and his final week's wages and was paid only one week despite the fact that he was owed over 3 weeks wages. He also submitted that he was unfairly selected for dismissal in that an Irish employee who was there less than a month and doing the same work as he was doing was retained in the employment.
In relation to his harassment complaint, the complainant stated the manager of the company made remarks about the non-Irish nationals in the belief that they could not understand English. He stated that the Irish workers were treated better and were given the easier jobs in comparison to the non-Irish nationals who were given jobs which lasted longer.
3.2 The Complainant's representative contended that the failure to provide a contract of employment to the complainant is a breach of the equality legislation and put the complainant at a distinct disadvantage . She submitted that because the complainant is a Estonian national he is less likely to know his rights than an Irish employee. She submitted that an Irish employee would not have been treated in the manner the complainant was treated. He was given no notice, no proper reason for his dismissal nor was he given any reason for choosing him for dismissal as distinct from choosing an Irish person. The complainant's legal representative, in his submission, also referred me to a number of cases in support of the 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. The respondent did not attend the hearing or respond to the Tribunal when the complaint was served on him or when the Tribunal sought a submission in response to the complainant's claim.
5. Conclusions of the Equality Officer
5.1 I am satisfied that the respondent was notified of the hearing so I will proceed to make a decision on the evidence before me.
The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race , in terms of section 6(1) and 6(2)(h) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards his conditions of employment. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) a person is treated less favourably than another person is,
has been or would be treated in a comparable situation
on any of the grounds specified in subsection (2) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
of race''),"
and Section 85A of the Acts provides:
"(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".
5.2 This requires the Complainants to prove the primary facts upon which he is seeking to rely 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 his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Firstly, I will consider the issues that have been raised by the complainant in relation to his conditions of employment which he contends constitutes unlawful discrimination on the grounds of race contrary to the Acts. He submits that the respondent's failure to provide him with a contract of employment and a van in good working order was discriminatory treatment on the race ground. Similarly he claims that the failure to pay him holidays and his final weeks wages constitutes discrimination on the race ground. It was therefore submitted that the Tribunal should infer that the complainant has raised an inference of discrimination and that he has been subjected to less favourable treatment because of his nationality and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination. I was referred to the above mentioned cases and in particular to the Labour Court Determination in the case of Campbell Catering Ltd. -v- Rasaq (EED048, and asked to apply the reasoning in the paragraph cited below.
"Before the complainant can succeed in her claim, the Court must be satisfied that she was treated less favourably that a comparator of a different racial origin is, was or would be treated in similar circumstances as those arising in the present case. The general approach which should be adopted in considering cases of racial discrimination was laid down by the House of Lords in Glasgow City Council v Zafar [1998] 2 All ER 953. This case was subsequently adopted in this jurisdiction by Quirk J in Davis v Dublin Institute of Technology, High Court, Unreported, 23rd June 2000 . In Zafar Lord Browne-Wilkinson pointed out that where there is a difference in treatment and a difference in race there is prima facie evidence of discrimination and it is for the respondent to provide a non- discriminatory explanation. This approach was adopted by this Court in Natoko v Citibank [2004] ELR 3 116 wherein the Court explained its underlying rational as follows:
This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof."
5.5 In considering the issues, I note from the evidence that there were workers from Poland, Lithuanian, Estonia and Ireland employed by the respondent as broadband installers. I note that the complainant accepts that none of the employees got contracts of employment.
5.6 In order to raise an inference of discrimination on the grounds of nationality, the complainants must first produce some evidence of less favourable treatment. I note that in the Campbell case cited above that the Labour Court went on to say in that determination following the passage quoted above that:
"This approach is entirely consistent with the procedural rule formulated by this Court in Mitchell v Southern Health Board [2001] ELR 2001 and which is normally applied by the Court in all cases of discrimination. Under this rule, a complainant bears the onus of proving facts from which discrimination may be inferred. If that onus is discharged, the respondent bears the burden of proving, on the balance of probabilities, that there has been no infringement of the principle of equal treatment."
5.7 I find that the complainant has not adduced any such facts from which discrimination could be inferred. The complainant has made a number of allegations about discrimination in relation to his conditions of employment not backed up by any facts. I have considered the reasoning in the case Melbury Developments and Valpeters (Det. No. EA AO917) where the Labour Court stated:
"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."
5.8 The above reasoning of the Labour Court is applicable in this case in that the complainant has made assertions about discrimination unsupported by any cogent evidence. 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 or a person of a different nationality was treated or would have been, in similar circumstances, in relation to his conditions of employment. Likewise in relation the non payment of his holidays and final week's wages the complainant has produced no evidence to support his contention that he was treated less favourably that an Irish person or a person of a different nationality was treat or would have been treated in similar circumstance. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this aspect of his complaint.
5.9 The next matter I have to consider is whether the complainant was harassed contrary to section 14A of the Acts. Harassment is defined as:
"(7) (a) In this section --
(i) references to harassment are to any form of unwanted
conduct related to any of the discriminatory grounds,
and ......
being conduct which in either case has the purpose or
effect of violating a person's dignity and creating an intimidating,
hostile, degrading, humiliating or offensive
environment for the person.
(b) Without prejudice to the generality of paragraph (a), such
unwanted conduct may consist of acts, requests, spoken
words, gestures or the production, display or circulation
of written words, pictures or other material.
5.10 In support of his claim that he was harassed, the complainant states that the manager made derogatory remarks about the foreign workers behind their backs and that he treated them differently in that they were given a harder time and given the more difficult jobs to do which lasted longer than the jobs given to Irish workers. I note that the complainant accepts that he himself was not subject to any comments which he found offensive or hostile. Likewise I note that in relation to the other aspects of his complaint about harassment he has not produced any evidence to support the contention that he was harassed by the manager. I am not satisfied that in any event that the treatment of the complainant as outlined above by him amounted to harassment within the meaning of the Act. For these reason I find that the complainant has failed to establish a prima facie case of harassment on the race ground.
5.11 I am now turning to the complaint of discriminatory dismissal. the complainant stated that he was dismissed prior to his holidays when he was told that there was no work for him. He submits that his dismissal was discriminatory in that an Irish employee who was there less than a month and doing the same work was retained in the employment. The complainant accepted that there must have been a downturn in the business because he learned later that between 10 and 15 people were let go in the months following his departure. While the complainant did not provide any corroborative evidence to support his case of discriminatory dismissal overall I found he gave very clear and credible evidence. I am satisfied therefore on the balance of probabilities that the complainant has raised an inference of discrimination on the nationality ground in that he was selected for dismissal due to the shortage of work ahead of an Irish worker who had less service than he had. I find therefore the complainant has established a prima facie case of discriminatory treatment in relation to his dismissal which has not been rebutted.
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 the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) and contrary to section 8(1) and 14A of the Acts in terms of his conditions of employment and harassment.
(ii) I find that the respondent did discriminatorily dismiss the complainant on the race ground contrary to Section 8(6) of the Acts.
Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The complainants weekly wage was €400 per week. I consider in the circumstances that an award in the amount of €3,000 is appropriate.
6.3 I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, order the respondent to pay the complainant €3,000 in compensation for the effects of the discriminatory dismissal. This figure represents compensation for the infringement of his rights under equality legislation in relation to discriminatory dismissal and does not include any element relating to remuneration, and therefore it is not taxable.
_________________
Marian Duffy
Equality Officer
1st December 2010