The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-250
PARTIES
Raimondas Bartkus, Rolandas Bitinas, Tomas Vanagas, Laimonas Vispulskas Aleksandrs Gorbacuks, Gints Patmalniers, & Erikas Videiko.
(Represented by Richard Grogan & Associates)
- V -
Aluminium Ireland Ltd.
File references: EE/2006/107, EE/2006/261, EE/2006/133, EE/2006/260, EE/2006/214, EE/2006/215, & EE/2006/216
Date of issue: 14 December 2010
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Victimisation - Victimisatory dismissal - Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Raimondas Bartkus, Rolandas Bitinas, Tomas Vanagas, Laimonas Vispulskas Aleksandrs Gorbacuks, Gints Patmalniers, & Erikas Videiko that they were subjected to discriminatory treatment by the respondent on the grounds of their race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts. In addition the complainants (1) raised claims of victimisation under the Acts, (2) raised a claim in relation to equal pay under the Acts, and (3) raised a claim in relation to a collective agreement under the Acts. The third-named complainant is also claiming victimisatory dismissal contrary to the provisions of the Acts.
1.2 The complainants referred their claims of discrimination to the Director of the Equality Tribunal on dates ranging between 10 April 2006 and 17 July 2006 under the Employment Equality Acts. On 1 October 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases to Conor Stokes - 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 which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 6 October 2010. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 Each of the complainants submitted that they were employed by the respondent and are non-Irish nationals (being from Lithuania and Latvia) and it is on this basis that these complaints are being taken. The complainants submitted that they did not receive a proper contracts nor Health & Safety documentation and/or training.
2.2 Each of the complainants submitted that they were not paid the correct rate of pay. The complainants submitted that they did not receive terms and conditions that complied with the registered employment agreement for the construction industry
2.3 Each of the complainants submitted that they did not receive proper employment documentation and were not joined into the CWPS pension and sick pay scheme. The complainants also submitted that they did not receive a P60.
2.4 The third-named complainant submitted that he was dismissed in a victimisatory fashion following lodgement of a claim with the Equality Tribunal. In addition, all of the remaining complainants submitted that they were subjected to victimisation when non-claimants were paid a higher hourly rate than the complainants were.
2.5 Each of the complainants submitted that they must establish a prima facie case and cited the Labour Court case of Southern Health Board v Mitchell in support of this contention.
2.6 Each of the complainants referred to the Equality Tribunal case 58 named Complainants v Goode Concrete Ltd. in relation to dismissal, contract of employment and Health & Safety.
2.7 Each of the complainant submitted a list of authorities citing 6 cases and a European Council directive as follows:
- Khumalo-v-Cleary & Doyle Limited DEC-E2008-003
- Campbell Catering Limited -&-Aderonke Rasaq ED/02/52
- Ning Ning Zhang -&-Towner Trading DEC-E2008-001
- 58 Named complainants -v- Goode Concrete Limited DEC-E2008-020
- Golovan -v- Porturlin Shell Fish Limited DEC-E2008-32
- Council Directive 91-533-EEC of 14 October 1991
- Wolf Gang Lange -&- Georg Schünemann Gmbh - Judgement of the European Court of Justice 8th February 2001. Case C-350-99
2.8 Each of the complainants submitted that they are seeking compensation.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent did not engage with the Tribunal in advance of the hearing.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected each of the complainants discriminatory treatment, and in one case discriminatory dismissal on grounds of race, in terms of Section 6 and 14A of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires each of the complainants to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 The respondent did not attend the hearing of this matter. The Tribunal sent notification of the hearing to the respondent by recorded delivery. Therefore, I was satisfied that the respondent was appropriately notified of the hearing of this complaint and I proceeded to hear the matter in the absence of the respondent. Notwithstanding the foregoing, it remains the case that the complainant must establish facts from which discrimination may be inferred.
4.4 At the start of the hearing the complainant's representative withdrew all proceedings before the Tribunal save for the issue of victimisation and, in the case of the third-named complainant, victimisatory dismissal.
4.5 I proceeded on that basis to question the complainants as regards the circumstances of the victimisation. Each of the complainants were found to be credible in delivering their evidence, both on an individual and on a collective basis.
4.6 Apart from the third-named complainant whose evidence related to the circumstances of his particular case, the remaining complainants evidence was consistent in all respects. The complainants gave evidence that there were proceedings before the Rights Commissioners service of the Labour Relations Commission. The proceedings, inter alia, took the form of two oral hearings. The complainants stated that the victimisation did not follow immediately upon notification to the respondent of the proceedings under the Employment Equality Acts, but rather at a later stage their colleagues, who had not taken any proceedings for breaches of Employment legislation, were given a higher rate of pay, in accordance with the Registered Employment Agreement. Each complainant, independently of one another, related this treatment as having started from the date of the first oral hearing before the Rights Commissioners and having ceased on the date of the second hearing before the Rights Commissioners.
4.7 The third-named complainant gave credible evidence that his dismissal took place immediately following the respondent's receipt of notification of proceedings under the Employment Equality Acts, issued 26 April 2006. In addition, he provided a possible explanation for the dismissal in that his level of English was much better than his colleagues and that he might have provided explanations to his colleagues as regards their rights. The date of his dismissal was the last day of April/first day of May 2006. This was some two months prior to the first of the Rights Commissioners hearings.
4.8 Under the Employment Equality Acts, victimisation is defined as follows:
(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to --
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
4.9 Section 2 of the Employment Equality Acts defines 'proceedings' as being:
(a) proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and
(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference, but does not include proceedings for an offence under this Act;
4.10 On the basis of the foregoing paragraphs and the evidence put forward by the complainants I am satisfied that the third-named complainant, Mr Tomas Vanagas, has established facts from which it may be inferred that he has been victimised in accordance with the Acts. As a prima facie case has been established, the onus shifts to the respondent to rebut the inference of victimisation raised. As the respondent did not present any argument to rebut this inference, the claim must succeed.
4.11 In the case of each of the remaining complainants, I cannot conclude that the treatment accorded to them was as a result of actions taken under the Employment Equality Acts, but on the balance of probability, is more likely to have been taken in response to the proceedings before the Rights Commissioners service. Therefore, I am not satisfied that the complainants have established facts from which victimisation, in accordance with the provisions of the Acts, may be inferred. As no prima facie case has been established, the claims of these complainants fail.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on behalf of each of the complainants on the basis of the race ground fails for want of prosecution.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of victimisation on behalf of Raimondas Bartkus, Rolandas Bitinas, Laimonas Vispulskas Aleksandrs Gorbacuks, Gints Patmalniers, & Erikas Videiko has not been established and therefore fails.
5.3 Having considered all the written and oral evidence presented to me, I find that a prima facie case of victimisatory dismissal has been established by Mr Tomas Vanagas and, in the absence of any rebuttal evidence, he is entitled to succeed in his complaint.
5.4 In accordance with section 82 of the Acts I award Mr Tomas Vanagas €16,630 in compensation for the victimisation suffered. As this does not include any element of remuneration, it is not subject to income tax.
Conor Stokes
Equality Officer
14 December 2010