EQUALITY OFFICER'S DECISION NO: DEC-E/2010/009
PARTIES
JASAITAS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
PATRICK BROCK AND SONS LTD
(REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION)
File No: EE/2007/135
Date of issue 2 February, 2010
Headnotes: Employment Equality Acts, 1998&2004 sections 6, and 77 - discriminatory treatment - discriminatory dismissal-- race -prima facie case - failure to attend Hearing
1. DISPUTE
This dispute involves a claim by Mr. Ricardas Jasaitas, who is a Lithuanian national, that he was (i) discriminated against by the respondent in respect of his conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts and (ii) dismissed in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a General Operative between July, 2006 and January, 2007. He contends that during his period of employment he was treated less favourably as regards his conditions of employment and was dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Lithuanian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 20 March, 2007. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 28 August, 2009 the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 14 January, 2010. The respondent was neither present nor represented at the Hearing. When contacted by the Tribunal the representative on record stated that the person who had been dealing with the matter left its employment in November, 2009. It confirmed that the Hearing was in that person's diary and the failure to attend was an oversight on its part.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Lithuanian national, commenced employment as a General Operative with the respondent on 19 July, 2006. He states that he did not receive a written contract or terms of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He contends that following the Decision of this Tribunal in 58 Complainants v Goode Concrete there is an obligation on an employer to provide employees with a contract of employment in a language which they understand. In the course of the Hearing the complainant stated that there were approximately six other General Operatives employed on the site - Irish, Polish, and Lithuanian - but was unable to confirm whether or not the respondent had provided any of these employees with a contract of employment or other documentation.
3.2 The complainant states that the respondent failed to provide him with a health and safety statement or documentation in a language which he could understand. He further states that he received no health and safety training at all during his employment. In the course of the Hearing the complainant was unable to say whether or not any of the other General Operatives employed at the same time as him received any health and safety training or documentation. It is submitted on his behalf that the respondent's action constitute less favourable treatment of him on grounds of race, contrary to the Acts. He seeks to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete in this regard.
3.3 The complainant states that he was approached by the Site Foreman (Mr. S) on the evening 18 January, 2007. He adds that Mr. S told him "that tomorrow will be your last day as we want to keep work for the Irish". The complainant contends that work on the site was not due to finish until March, 2007 and in any event the respondent had other sites where he could have been relocated. He further contends that one of the Irish General Operatives, who had commenced employment with the respondent after him, was kept on and he (the complainant) was dismissed. In the course of the Hearing the complainant rejected the version of events advanced by the respondent in its written submission to the Tribunal in respect of the termination of his employment. It is submitted on behalf of the complainant that the respondent's treatment of him constitutes discriminatory dismissal on grounds of race contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
The respondent neither attended the Hearing nor was it represented at same.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts as regards his conditions of and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 The respondent did not attend nor was it represented at the Hearing. Written notification of the arrangements for the Hearing was sent to the parties on 1 September, 2009. When the respondent or its representative did not arrive for the Hearing at the allotted time I waited ten minutes and then the Tribunal's Secretariat made contact with the representative on record seeking confirmation/clarification of its attendance. The Tribunal was informed by the respondent's representative that the person who had been handling the case had left its employment some months earlier, that the Hearing was in his diary and that the failure to attend was an oversight on its part. I was satisfied that the respondent was on notice of the Hearing and proceeded with my investigation as scheduled.
5.3 Section 6(1) of the Employment Equality Acts, 1998 and 2004 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) 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 his is Lithuanian.
5.4 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.5 The first issue raised by the complainant relates to the respondent's failure to furnish him with a written contract of employment. In the first instance it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal. The complainant stated that there were around six other General Operatives employed at the same time as him - Irish, Polish and Lithuanian - but he was unable to say if any of those employees received written contracts of employment or other documentation. He makes similar assertions in respect of health and safety training and documentation.
5.6 In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts 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."
5.7 In the instant case I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect of the failure of the respondent to provide him with a written contract of employment or other documentation could be inferred. I have reached a similar conclusion as regards the failure of the respondent to provide the complainant with the appropriate health and safety training and documentation in a language he could understand.
5.8 The complainant asserts that the Site Foreman (Mr. S) approached him on the evening of 18 January, 2007 and told him "that tomorrow will be your last day as we want to keep work for the Irish". The complainant contends that work on the site was not due to finish until March, 2007 and states he had expected to retain his employment until that time. He further contends that one of the Irish General Operatives, who had commenced employment with the respondent after him, was kept on and he (the complainant) was dismissed and submits that this constitutes discrimination of him on grounds of race contrary to the Acts. At the Hearing the complainant was clear in his recollection of events on 18 January, 2007 and that one of the Irish General Operatives (Mr. X) had commenced employment with the respondent after him. He rejected as false the version of events surrounding the termination of his employment which had been advanced by the respondent in its submission to the Tribunal. In the circumstances I am satisfied that the complainant's uncontested evidence is sufficient to establish a prima facie case of discrimination on this element of his complaint and the respondent has failed to rebut that inference so raised as it did not attend, nor was it represented, at the Hearing. It follows therefore that the complainant is entitled to succeed in this element of his complaint.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the complainant has failed to establish a prima facie case of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts in respect of those aspects of his conditions of employment connected with a written contract of employment and health and safety instruction/documentation,
(ii) that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2008 I order that the respondent pay the complainant the sum of €9,000 by way of compensation for the distress suffered by him as a result of this discrimination. This award includes an amount of €5,600 in respect of loss of earnings and is subject to the PAYE/PRSI Code. The remainder is for the distress suffered by the complainant as a result of the discrimination and is not therefore subject to that Code.
_______________________________________
Vivian Jackson
Equality Officer
2 February, 2010