THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 011
PARTIES
Mr Tomas Ratkevicius
(represented by Richard Grogan and Associates, Solicitors)
and
Mr Martin McNally
File Reference: EE/2007/271
EE/2007/395
Date of Issue: 10th February 2010
Claim
1.1. The case concerns a claim by Mr Tomas Ratkevicius that Mr Martin McNally discriminated against him on the ground of race contrary to Section(s) 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of conditions of employment, harassment and in relation to a collective agreement. Mr Ratkevicius further complains of victimisation contrary to S. 74(2) of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 28 May 2007. He referred a complaint referring to alleged victimisation on 30 July 2007 A submission was received from the complainant on 31 July 2008. No submission was received from the respondent. On 7 May 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 16 December 2009. The respondent did not attend the hearing. Additional evidence was requested from the representative of the complainant on 21 January 2010 and received on 4 February 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that he was not paid according to the Registered Employment Agreement for the Construction Industry; that he did not receive proper tax documentation during the time he was in the respondent's employment and that he did not receive a contract of employment or health and safety documentation. The complainant further alleges that when he lodged legal proceedings, he received abusive text messages, which he contends constitutes victimisation.
3. Summary of the Respondent's Written Submission
3.1. The respondent did not submit a written submission to the Tribunal.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against and harassed on the ground of race within the meaning of the Acts and whether he was victimised after lodging proceedings with the Tribunal within the meaning of S. 74(2) of the Acts..
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. At the beginning of the hearing, the complainant's representative withdrew the complaint relating to a collective agreement. The representative also withdrew all complaints against the respondent company and indicated that he wished to proceed with the complaints against the respondent personally. From the complainant's P60 form, submitted post-hearing, I am satisfied that the complainant was indeed employed by Mr McNally personally.
4.4. The complainant is Lithuanian and worked for the respondent as a roofer. Six Lithuanian nationals worked in that capacity for the respondent, with extra Irish staff employed on busy days.
4.5. The complainant stated that he did not receive a contract of employment, and that he did not receive health and safety information beyond the fact that he held a FAS SafePass. He was not in a position to specify whether the respondent's Irish workers did receive contracts or health and safety information. Based on the information provided by the complainant, I do not find that he has established a prima facie case of less favourable treatment on the ground of his nationality with regard to the above matters.
4.6. The complainant further specified that he was regularly called demeaning names. However, the terms he specified in his evidence have no connection to his nationality, or any of the other protected grounds. I therefore find that the complainant has not established a prima facie case of harassment on the ground of his nationality.
4.7. Regarding the complainant's complaint of victimisation, he alleges that he received threatening text messages from the respondent after he lodged legal proceedings. However, the complainant was not in a position to produce the original text messages on his mobile telephone in evidence. I note that there is already a Rights Commissioners decision regarding a complaint of penalisation pursuant to S. 27 of the Safety, Health and Welfare at Work Act, 2005, in connection with the same text messages which form the complainant's complaint of victimisation. The messages are quoted verbatim in the decision of the Rights Commissioner, and based on this, I am willing to accept that the complainant received the messages as quoted.
4.8. One of the three messages is clearly intimidating in nature. However, its content makes no reference to matters about which the complainant complained to the Tribunal. S. 74(2)(b) of the Employment Equality Acts defines "victimisation" as being dismissal or other adverse treatment of an employee by his or her employer that occurs as a reaction to "any proceedings by a complainant". However, S. 2 of the Acts defines "proceedings" as
(a) proceedings before the person, body or court dealing with a request or reference under this Act or on behalf of a person and
(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference. [Emphasis added]
4.9. Furthermore, the complainant could not show that they were received on a date after he lodged his complaint of discrimination with the Tribunal. I therefore find that there is insufficient proof to link that text message to the matters pertaining to the complainant's claim of discrimination pursuant to the requirement of S. 74(2) of the Acts, and that his complaint of victimisation must therefore fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) the respondent did not discriminate against Mr Ratkevicius in his terms and conditions of employment contrary to S. 8(1) of the Acts, on the ground of race pursuant to S. 6(2)(h) of the Acts;
(ii) the respondent did not harass Mr Ratkevicius contrary to S. 14A of the Acts;
(iii) the respondent did not victimise Mr Ratkevicius contrary to S. 74(2) of the Acts.
________________________
Stephen Bonnlander
Equality Officer
10 February 2010