THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010-241
Gundars Timma, Romans Nazarovs and Roberts Grasis
(represented by Peter Leonard B.L. instructed by Grogan and Associates Solicitors)
versus
Flynn Concrete Products Ltd
(in receivership)
File reference: EE/2007/557, EE/2007/373 and EE/2007/524
Date of issue: 9th December 2010
Keywords: Employment Equality Acts, Race, Conditions of Employment, Victimisatory Dismissal
Dispute
1.1. The case concerns claims by three Latvian Nationals - Gundars Timma, Romans Nazarovs and Roberts Grasis - against Flynn Concrete Products Ltd. Their claim is that they were discriminated against in relation to conditions of employment contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts'] on the grounds of race. Gundars Timma claims he was victimised by being dismissed. Discriminatory pay is also claimed but as no comparator is named this is not a valid equal pay claim. The claims in relation to harassment, training and access to employment were withdrawn at the hearing.
1.2. Through their legal representative, the complainants referred their complaints under the Acts to the Director of the Equality Tribunal on different dates (see Appendix). On 6th May 2010, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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. Written submissions were received from the complainants' representative and a hearing was held on 17th September 2010 as required by Section 79(1) of the Acts.
Summary of the complainants' case
2.1 They maintain that they were treated less favourably because they were Latvian. Not every document was immediately translated into Latvian. They submit that they had to work long hours with insufficient breaks and that it was hard work.
2.2 Cases cited were Khumalo v Cleary and Doyle , Campbell Catering Ltd and Aderonke Rasaq , Zhang v Towner Trading , Golovan v Porturlin Shellfish Ltd
2.3 In relation to Gundars Timma's dismissal, he submits he was dismissed almost immediately after his legal advisor submitted a EE2 form requesting information under Section 76 of the Acts to the respondent. On 18th October 2007, his solicitor sent this form to the respondent. Mr Timma was dismissed by letter on 6th November 2007.
Summary of the respondent's case
3.1 Flynn Concrete Bonding Ltd., who are in receivership, were duly notified but did not attend the hearing.
Conclusions of the Equality Officer
4.1 Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. The issues for me to decide are:
a. Were the complainants discriminated in relation to conditions of employment on ground of race in terms of 8(1)(b) of the Acts?
b. Did the respondent victimise Gundars Timma by dismissing him contrary to Section 74 (2) of the Acts?
4.2 In evaluating the evidence before me, I must first consider whether the complainants have established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
Conditions of employment
4.3 Regarding conditions of employment, Section 8(6)(c) of the Acts states that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee the same treatment [my emphasis] in relation to overtime, shift work, short time transfers layoffs, redundancies, dismissals and disciplinary measures as the employer offer or affords to another person where the circumstances in which both such persons are employed are not materially different.
4.4 The complainants have not adduced evidence to support an argument that they were treated less favourably than any other employee was or would have been treated in similar circumstances. The examples they cite of alleged discriminatory treatment by their former employer are long and intense working days with insufficient breaks. These are complaints shared by many employees of various nationalities in a variety of workplaces. By their own admission in direct evidence, almost all employees were of Latvian nationality and they could not offer examples of Irish employees there being treated more favourably. Regarding the translation of documents into Latvian, the complainants' submission included copious circulars and instructions from the Flynn Concrete Bonding Ltd that were presented with English at the left of the document and Latvian on the right. These include a variety of documents from contracts of employment to directions to keep the toilet clean. This would indicate that most documents were simultaneously translated into Latvian. For these reasons, I cannot accept that the complainants were discriminated regarding their conditions of employment on the ground of race.
Victimisatory dismissal
4.5 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.6 In the letter dismissing Mr Timma, the respondent gives the reasons for his termination:
- Failure, on your part, to cooperate fully with an internal investigation of a complaint made by yourself against your supervisor
- Failure to make full use of the "chain of command" to have your complaint investigated and addressed internally
- Your misguided efforts to organise a company wide campaign against your supervisor
- Your attitude towards the company and your work of late that can at best be described as uncooperative
We feel very strongly that the above has irreparably damaged the relationship between employer and employee.
Mr. Timma admitted that he instigated the complaint against his supervisor but refused to answer the questions of the independent investigator appointed and the investigation of his complaint was abandoned. When asked why he did not cooperate with the investigation, he just shrugged his shoulders. EE2 forms were sent to the respondent on behalf of the other two complainants but they were not dismissed. Therefore, I do not consider that sufficient evidence has been adduced to establish a prima facie case of victimisatory dismissal of Mr Timma.
Decision
I have concluded my investigation of the complaints of Gundars Timma, Romans Nazarovs and Roberts Grasis and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) The respondent did not discriminate against Gundars Timma, Romans Nazarovs and Roberts Grasis regarding their conditions of employment on the ground of race.
(ii) Dismissing Gundars Timma was not victimisation with the meaning of the Acts.
________________
Orlaith Mannion
Equality Officer
Appendix- Details of claim
All complaints are on the ground of race Gundars Timma Romans Nazarovs Robert Grasis
Nationality Latvian Latvian Latvian
Date of complaint 25/10/2007 23/07/2007 21/09/2007
Discriminatory treatment re. conditions of employment √ √ √
Victimisatory dismissal √