THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 240
PARTIES
Mr Remigijus Sadauskas
(represented by Richard Grogan & Associates)
and
Dublin Meath Growers Society Ltd
File Reference: EE/2007/449/450
Date of Issue: 9th December, 2010
Headnotes: Employment Equality Acts, 1998 & 2004, section 6,8, 14 and 77 - Section 6(2)(h), race ground - Section 8(i)(a), conditions of employment - Section 8(1)(c), training - no evidence of less favourable treatment
1. Dispute
1.1. This case concerns a complaint by Mr. Remigijus Sadauskas (hereinafter referred to as "the complainant") that he was discriminated against by Dublin Meath Growers Society Ltd. (hereinafter referred to as "the respondent") on the grounds of race (with respect to his nationality) contrary to section 6(2)(h) of the Employment Equality Acts in relation to conditions of employment contrary to section 8(1)(b) of the Acts and training contrary to Section 8(1)(c) of the Acts.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 27th August, 2007 alleging that the respondent had discriminated against him on the ground of race (with respect to his nationality).
2.2 On the 19th May, 2010, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Gary O'Doherty, 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, on which date my investigation commenced. Written submissions were received from both parties. A hearing of the complaint was held on Thursday, 25th November, 2010.
3. Summary of the Complainant's case
3.1. The complainant is a Lithuanian national who submitted that he was employed by the respondent from 6th February, 2007 to 2nd May, 2007 as a packer.
3.2. He submitted that he was required to work excessive hours and was treated less favourably than workers who were not required to work the same hours. At the hearing, he stated that he worked from 8 a.m. and sometimes worked until 6 p.m. or 7 p.m. while others left at 3 p.m. or 5 p.m. He said, however, that those who left at 3 p.m. were Supervisors. He also said that the majority of other packers, principally Polish workers, left at 5 p.m. but were workers who did not wish to do overtime. He stated that he did wish to do overtime, and stayed beyond 5 p.m. to do so, and was paid for the extra hours he worked in that regard. He also stated that he was always got his breaks on time.
3.3. The complainant had indicated in his complaint form that he was proceeding with a case in relation to training, but did not elaborate upon this point in its submission. However, at the hearing, he stated that he was discriminated against in relation to training in that he was not provided with training by the respondent. He said that he was a packer, and that he was not provided with any training. However, he said that when he started he was told "what to cut and how to cut". He said that no other worker received any training or other instruction. He stated, however, that his case relied on a notional comparator in that there were no Irish packers and if there had been they would have been provided with training.
3.4. The complainant made a number of other submissions in relation to conditions of employment, but these were withdrawn at the hearing.
4. Summary of the Respondent's case
4.1. The respondent submitted that, particularly given that the matter had already been adjudicated upon by the Rights Commissioners in that respect, the issue relating to working hours was irrelevant in circumstances where the complainant had not established that he had been subjected to less favourable treatment in that regard. It reiterated this point at the hearing, adding that there was no nexus between the complainant's evidence and less favourable treatment on the race ground.
4.2. In relation to training, the respondent did not provide any submissions in advance of the hearing because they were not referred to in the complainant's submission. However, at the hearing it stated that there was a conflict of evidence in relation to the complainant's own evidence in that he said he did not receive training and yet he said that he was told what to cut and how to cut. Furthermore, it stated that the training that was provided to the complainant and all workers was on the job training, as described by the complainant as well as further training by supervisors and more experienced colleagues. In any event, it stated that it had one Irish and one or two part-time Irish workers who worked for it at the same time as the complainant and who did similar jobs and that the training that was provided to them was the same as the training that was provided to the complainant. In that context, it stated that the complainant's claim in relation to a notional comparator was redundant.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If he/she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "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)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins.." It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Lithuanian.
5.3. The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2)(h) of the Acts and contrary to section 8 of the Acts in terms of conditions of employment and/or training. In reaching my decision I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
5.4. In relation to the issue of working hours, it is quite clear that the complainant worked additional hours at his own request. In those circumstances, there is no question of less favourable treatment by the respondent. In relation to training, I am satisfied that the only training provided by the respondent to its packers was on-the-job training. It is clear from the evidence of both parties that the complainant received such training. As I am satisfied that Irish workers doing the same job did not receive any additional training, the question relating to a notional comparator is irrelevant.
5.5. As the complainant has failed to provide any evidence of less favourable treatment, his complaint fails.
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:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the race ground pursuant to section 6(2)(h) of the Acts in terms of conditions of employment contrary to s.8(1)(a) of the Acts and in terms of training contrary to section 8(1)(c) of the Acts.
6.3. Accordingly, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
9th December 2010