THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 245
PARTIES
Mr. Antanas Kazenas and Mr. Gunars Mizans
(represented by Richard Grogan and Associates, Solicitors)
and
Slaney Foods International Limited
(represented by Loughlin Deegan, Solicitor, IBEC)
File References: EE/2008/211 & EE/2008/250
Date of Issue: 10th December, 2010
File references: EE/2008/211 & EE/2008/250 - DEC-E2010-245
Keywords
Employment Equality Acts 1998-2008 - Section 6 and 8 - discriminatory treatment - race - conditions of employment - health and safety training
1. Dispute
1.1 These cases concern complaints by Mr. Antanas Kazenas, who is a Lithuanian national, and Mr. Gunars Mizans, who is a Latvian national. They claim that they were discriminated against by Slaney Foods International Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of their conditions of employment and training.
2. Delegation of the complaint
2.1 Mr. Antanas Kazenas referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on the 4th April 2008. Mr. Gunars Mizans referred his complaint on 21st April 2008. In accordance with his powers under section 75 of the Acts, the Director then delegated these cases to me, James Kelly, an Equality Officer on the 20th July 2010 and the 12th August 2010, respectively, 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 both the complainants and from the respondent. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to a joint hearing of these cases on the 8th October, 2010 and the last correspondence received on the matter was on the 8th November, 2010.
3. Summary of the Complainants' case
3.1 Mr. Antanas Kazenas was employed by the respondent as a general operative from 9th July 2007 until 11th January, 2008 in one of the respondent's boning halls. He had moved to Ireland in 2005. He stated that there were a number of other employees of various nationalities employed by the respondent doing similar duties to him during his period of employment. He claims that he did receive a written contract of employment in English. However, there was no translation into Lithuanian or a language that he could understand and no interpreter made available to help him translate the document. He also claims that he never received any health and safety training or documentation in his own language while working with the respondent.
3.2 Mr. Kazenas's evidence at the hearing was that he was asked to provide translations of certain documents from English into Lithuanian for the respondent. He claims that a unnamed friend carried out the translations on his behalf, which were then returned to the respondent. However, he claims that he did not do the translation of these documents. The unnamed friend was not present at the hearing to give evidence on the complainant's behalf.
3.3 Mr. Gunars Mizans was employed by the respondent as a general operative from 6th July 2007 until 11th January, 2008 also in one of the respondent's boning halls. He had been in Ireland since 2000. He stated that there were a number of other employees of various nationalities including of Irish origin employed by the respondent doing similar duties to him during his period of employment. He claims that he did receive a written contract of employment in English. However, there was no translation into Latvian or a language that he could understand and no interpreter made available to help him translate the document. He also claims that he never received any health and safety training or documentation in his own language in the time he was working with the respondent. Mr. Mizans claims that he had taken the respondent's health and safety tests in English, but had just copied answers from one of his work colleagues who has very good English. Accordingly, he claims that the test results do not demonstrate his actual level of understanding of the material presented.
3.4 It is the evidence of both the complainants that their level of English was not very good, particularly in reading. However, it is their evidence that neither of them identified this to the respondent in any of the various meetings during their time there. They both said that they were afraid that it might effect their employment.
3.5 The Legal Representative for the complainant submitted that the respondent's failure to provide translated documents in their own language, or a language they could understand was in breach of the Acts. He further submitted that as the complainants were foreign nationals the respondent has a responsibility to take special measures to protect them. He also submitted that following the Decision of the Tribunal in 58 Complainants -v- Goode Concrete , there is an obligation on an employer to provide employees with a written contract of employment in a language which they can understand. The complainants also submitted that the respondent's failure to provide them with health and safety statements & training in a language which they could understand amounts to discrimination within the meaning of the Acts.
4. Summary of the Respondent's case
4.1 The respondent claims that it has been involved in the slaughtering of animals, boning and packaging of meat for around 35 years. It would employ approximately 300 people, 70% of whom are non Irish nationals. It claims to employ Latvian, Lithuanian, Czech, Polish and Egyptian works. It claims that it has a commitment of equal opportunity for all its employees. It refers to its company documentation which had been translated into a variety of languages and it claims its attempts to continually extend and improve that aspect of service to its employees. It claims that this is demonstrated by its request to Mr. Kazenas to translate certain documents into Lithuanian.
4.2 The respondent does not dispute that both complainants were employed with it and are no longer working there. However, contrary to the evidence from the complainants, it claims that both complainants were provided with a contract of employment, health and safety training and documentation in a language that they understood. The respondent submitted that it is an equal opportunity employer and has a strong and consistent policy of supporting and integrating employees from other countries. It presented evidence to demonstrate that it had translated much of its documentation into other languages and it claims that it has always been able to call on fellow workers to assist if there was a problem with an employee not understanding something due to linguistic issues.
4.3 Ms. A, Human Resources Manager, claims that she met with both complainants and interviewed them for the jobs. She claims that they both had "an excellent level of English", and they had no difficulty in communicating with her. She claims that she presented them with their contracts of employment where both were asked to read the contracts and confirm they understood them, which they both did before signing them. She claims that no issue was raised by either to suggest they had a difficulty in understanding the contract and neither asked for an interpreter to be provided. She also claims that she was in contact with Mr. Kazenas after he was made redundant in relation to work with another company, who had approached her looking for staff with very good English language skills. She further maintains that the respondent had approached Mr. Kazenas to translate documents on its behalf from English into Lithuanian; some of these documents were duly returned translated.
4.4 The respondent claims that both complainants were treated fairly and in the same manner as all the other employees. It claims that they were both given health and safety training, which included documentation and an examination of their understanding of the material. Mr. B, Health and Safety Manager, presented evidence of the training he gave to the complainants. He also was convinced that their level of English was excellent. He claims that if an employee had a problem understanding he would quickly realise and have provided an interpreter where necessary. He claims that having worked with both complainants he was assured that this was not necessary. His evidence is that he conducted the training in English in an interactive conversational manner and neither presented with any difficulties understanding him or the content. The respondent provided documentary evidence of examination material, which shows that the complainants were provided with extensive health and safety material and had comprehensively scored high in the tests taken. Mr. A totally denies Mr. Mizans allegation that there was copying of answers in the examination taken.
4.5 The respondent refers to and wished to rely on the similarity of this case with the decision in Clare Civil Engineering Limited where it claims that the Labour Court makes a distinction between the level of tests to be applied to the practical situation and circumstances surrounding each case. It claims that in Clare Civil Engineering Limited case the respondent undertook to apply practical steps to ensure that the complainants understood the health and safety training. The respondent claims that the Labour Court set a lower test in this instance as compared to the higher test outlined in the Rasaq case where special measures were deemed fundamentally necessary in that instance.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainants to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to them. If they succeed 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 these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainants. 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 Employment Equality Acts, 1998 to 2008 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 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 At the outset of the hearing of these complaints, the complainants' representative withdrew complaints in relation to Pay and Discriminatory dismissal. Accordingly, the issues for decision in this case is whether or not the respondent discriminated against the complainants on the ground of their race in the conditions of employment and training contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.4 Firstly, the complainants have submitted that the Decision of this Tribunal in 58 Complainants -v- Goode Concrete places an obligation on an employer to furnish non-Irish employees with a contract of employment in a language which they understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes its employees with contracts of employment and/or health and safety statements it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment in English and not in a language which they can understand. I note that the Equality Officer went on to make an order to "put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation" rather than specifying that the contract of employment and/or health and safety statement should be provided in those employees native language, or any other language for that matter. Therefore, the clear principle in the Goode Concrete case was to place the onus on the respondent to make reasonable efforts to ensure that the relevant employee understood their rights and that it ensured that they were not treated less favourably than someone else who was made aware of those rights.
5.5 In considering this issue, I have also taken cognisance of the recent determination of the Labour Court whilst examining the circumstances in which the probative burden of proof operates held as follows:-
"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 I will now consider the issues that have been raised by both complainants in relation to the respondent's alleged failure to provide them with a written contract of employment in a language that they could understand and which they have contended constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. It was submitted that the Tribunal should infer that they have been subjected to less favourable treatment on the grounds of their race and, accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.7 In the present case, the respondent accepted that the contracts which were issued to the complainants were in the English language. However, the respondent stated that it had been satisfied that the complainant's level of English was such a level that they could read and understand the contract in each case, which they were asked to do before signing it. I note that the respondent was so convinced by Mr. Kazenas language skills that it had asked him to translate documents from the English language on its behalf. This is not denied by him, although he did claim that he did not ultimately carry out the translations. The respondent stated in evidence that no language difficulty issues were ever raised and likewise the complainants have not claimed that they raised any issue in relation to same with the respondent. I have found from the respondent's evidence, that it deemed the complainant's language skills to be at such a level as not to require translation or interpretation into the complainants' mother tongue to be credible in relation to this issue. I am satisfied that the measures taken by the respondent to ensure that the complainants understood the contract of employment were reasonable in the circumstances of this case. Therefore I find that the complainants have failed to establish that they were treated less favourably than an Irish person was treated or would have been, in similar circumstances, on the grounds of their race in relation to this aspect of conditions of employment. Accordingly, I find that the complainants have failed to establish a prima facie case in relation to this element of their complaint.
5.8 The next issue raised by the complainants relates to the respondent's failure to provide them with health and safety training in a language that they could understand. I note that the respondent claims that all training was usually given in a small class room type environment where the tutor actively engaged with the class in an interactive conversational manner. I note that the respondent's evidence that had he perceived that any student had difficulty in understanding the material because of their poor linguistic skills, he would have sought an interpreter. I note the evidence from both of the respondent's witnesses where they claim that the complainants had an excellent level of English. I note that the complainants and the respondent communicated in English. I also note that the health and safety training was conducted in English and that no one identified any problems or suggested that the complainants were experiencing difficulties. I am satisfied that everyone was treated the same with regard to this aspect of training.
5.9 As to the health and safety documentation, there is no dispute that Mr. Kazenas received the company handbook in the English language. The respondent claims that it did not have it translated into Lithuanian. However, again it was so confident that Mr. Kazenas linguistic skills were of such a high standard that they asked him to translate it into Lithuanian on their behalf. I note that Mr. Kazenas was also asked to provide translation of other documents, which were duly completed and returned; whereas Mr. Kazenas now claims that these translations were done by a unnamed house mate or friend of his and not by him. I note that Mr. Kazenas was given the health and safety test in Lithuanian, a copy of the test paper was sourced from a sister company of the respondent. I note from the health and safety documentation that some of the tests were very practical in nature e.g. where his test results were high. I note the documentation has a high pictorial element, including graphic representation of the written text on each page - e.g. symbols relating to no smoking, hearing protection, personal hygiene.
5.10 I am also satisfied that the respondent was confident that Mr. Kazenas level of English was at the time of such a high level that he would have little to no difficulty in understanding the documents provided. I find the respondent's witnesses to be very credible and consistent in relation to their account of the events and their interaction with Mr. Kazenas and I am satisfied that he was not treated less favourably because of his race in relation to this aspect of his claim.
5.11 In relation to Mr. Mizans, I note the contested evidence in relation to whether the complainant received the company handbook in a language he could understand. I note the respondent's evidence that he received the handbook in Latvian. I note that it claims that it had many Latvian workers employed with it for some time and accordingly it had this document translated many years before Mr. Mizans started working with the respondent. I am satisfied that the respondent's witnesses were consistent and credible and therefore I do not doubt that Mr. Mizans was provided with the company handbook in Latvian. Accordingly, I am satisfied that he was not treated less favourably because of his race in relation to this aspect of his claim.
5.12 I am satisfied that the efforts taken by the respondent with respect to both complainants, in relation to the contract of employment, health and safety training and documentation, were perfectly reasonable giving the circumstances of these cases. Furthermore, I am satisfied that it was entitled to rely upon the complainants' statements that they had understood the terms and conditions where they were explained to them in English, and that it had satisfied any obligation on it arising from the principles outlined in 58 Complainants -v- Goode Concrete case in this respect. I find that the complainants were provided with the relevant documentation and training, and were not treated less favourably in that respect. I am not satisfied that the complainants, in the present cases, have adduced any evidence from which I could reasonably conclude that they were treated less favourably than other workers of a different nationality (i.e. those of Irish origin) in terms of how they were treated in relation to their conditions of employment, health and safety training and documentation. Accordingly, in the circumstances, I find that the complainants have failed to establish facts from which it could be inferred that they were treated less favourably on the grounds of race as regards any element of their complaints.
6. Decision
6.1 Having investigated the above complaints, 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 Mr. Kazenas and Mr. Mizans on the race ground pursuant to section 6(2)(h) of the Acts in respect of their conditions of employment contrary to section 8(1) of the Acts.
- Accordingly, I find in favour of the respondent in this matter.
______________
James Kelly
Equality Officer
10th December, 2010