The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-251
PARTIES
Oleg Melnikov, Anatolij Guseinov & Minduagas Bazuilis
(Represented by Richard Grogan & Associates)
- V -
J.K.M. Construction Limited (in liquidation)
File references: EE/2007/346, EE/2007/372 & EE/2007/454
Date of issue: 15 December 2010
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Harassment - Claim in relation to a collective agreement - Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Oleg Melnikov, Anatolij Guseinov & Minduagas Bazuilis that they were subjected to discriminatory treatment, discriminatory dismissal and harassment by J.K.M. Construction Limited 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. They are also claiming that a collective agreement is discriminatory.
1.2 The complainants referred claims of discrimination to the Director of the Equality Tribunal on 9 & 23 July 2007 and 27 August 2007 respectively under the Employment Equality Acts. On 8 July 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 4 November 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 from 16 January 2007 until 27 April 2007. The complainants are Lithuanian nationals and it is on this basis that these complaints are being taken. Each of 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 under the registered employment agreement for the construction industry despite the fact that the respondent had joined them into the CWPS pension and sick pay scheme which only applies to construction workers.
2.3 Each of the complainants submitted that they were dismissed without any proper reason or procedure and they believe that 5 Romanians were taken on after they were let go.
2.4 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.
2.5 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.
2.5 The complainants 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
2.6 Each of the complainants submitted that they are seeking compensation.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 In advance of the hearing, the respondent submitted that it is a small business with no dedicated HR representative or policies and procedures. The respondent submitted that it was therefore unaware of its legal obligation to issue employees with contracts of employment or health and safety documentation and did not provide any of its employees, either Irish or foreign nationals with such information. The respondent submitted that it treated all of its employees equally in this respect.
3.2 The respondent submitted that given that the foregoing breaches of employment law have already been referred to the Labour Relations Commission under the appropriate legislation, it is difficult to ascertain why the case has also been referred to the Equality Tribunal as there is no evidence of discriminatory treatment.
3.3 The respondent submitted that with regard to dismissals by redundancy, the company lays off employees on a site by site basis when work is running down. Workers are not displaced by workers from other sites and this is the norm in the construction industry. The Romanian workers referred to by the complainants were retained on another site before the complainants were let go and that this procedure is normal custom and practice. The respondent also submitted that the company has continued to downsize since then.
3.4 The respondent submitted that it did not breach the equality legislation as all of its workforce were treated equally.
3.5 The day before the hearing, the liquidator appointed to this company contacted the Tribunal to indicate that he would not be attending the hearing as his presence would serve no purpose. He did, however, enclose an additional copy of the submissions previously made, stating that as far as he was concerned the arguments made therein remained valid.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issues for decision by me are whether or not the respondent subjected each of the complainants to discriminatory treatment, discriminatory dismissal and harassment on grounds of race, in terms of Section 6 and 14A of the Employment Equality Acts, and contrary to Section 8 of those Acts. In addition, it is also for me to consider whether any provision of Registered Employment Agreement for the construction industry falls within the ambit of Section 9 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 complainant 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. As correspondence was received from the appointed liquidator, 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 was asked what, if any, evidence there was of discrimination as all of the allegations contained in the written submissions appeared to refer to infringements of employment law other than the Employment Equality Acts. In response the complainant's representative stated that all matters except one before the Tribunal were being withdrawn. The complainant's representative indicated that the only matter being left for consideration by the Tribunal in relation to all three complainants, was that the complainants had been dismissed in a discriminatory fashion on the basis of their race.
4.5 I proceeded on that basis and questioned each of the complainants as regards the circumstances of their employment and dismissal. Each of the complainants were vague and uncertain as to the location, duration and timeframe of their employment. They were unable to provide names of colleagues, even those of the same nationality and language. The total absence of detail undermines the credibility of their claim.
4.6 Following further questioning, the complainants gave evidence, independently of one another, that at least one other Lithuanian national was kept on by the respondent and that he had worked for between two and five years for the respondent. One of the complainants indicated that this other Lithuanian national had been kept on until the company was wound up. That some employees of the same nationality were let go and others of that nationality were kept on undermines the central point of the complainants claim, i.e. that they were let go on the basis of their nationality.
4.7 Each of the complainants gave evidence that shortly before they were let go, a number of Romanians were taken on who remained in employment after the termination of the complainants employment. They were unable to provide any detail in relation to these workers, other than that there were 5 or 6 of them and that they worked on a different site to the complainants.
4.8 Having regard to the central issue of 4.6 above and the total lack of detail provided by the complainants during their oral testimony, I am not satisfied that each of the complainants have established facts from which discrimination may be inferred. As no prima facie case has been established, these complaints must fail.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that each of the claims of discriminatory treatment and harassment on the basis of the race ground, and any claim in relation to a collective agreement, fail due to lack of prosecution.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the race ground has not been established in any of the claims and this element of each of the complaints fails.
Conor Stokes
Equality Officer
15 December 2010