THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 012
PARTIES
Mr Roman Manolijs
(represented by Richard Grogan and Associates, Solicitors)
and
Kildownet Utilities Ltd.
(represented by Sherry's Solicitors)
File Reference: EE/2007/622
Date of Issue: 12th February 2010
Claim
1.1. The case concerns a claim by Mr Roman Manolijs that Kildownet Utilities Ltd. discriminated against him on the ground of his nationality as defined by the race ground contrary to Section 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of training, conditions of employment, pay, discriminatory dismissal and harassment.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 26 November 2007. A submission was received from the complainant on 31 July 2008. A submission was received from the respondent on 12 September 2008. 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 10 February 2010. The respondent did not attend the hearing. Both parties had been informed of the hearing date by registered and regular post.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that he is Latvian and that he worked for the respondent as a carpenter and concrete finisher. He complains that he was not paid according to the Registered Employment Agreement for the Construction Industry (REA); that he received no contract of employment and no health and safety training, and that he was dismissed without proper procedures. He further contends that the manner in which he was treated constitutes harassment within the meaning of the Acts.
3. Summary of the Respondent's Written Submission
3.1. The respondent disputes the allegations of the complainant. In particular, it states that the complainant was provided with a statement of his terms of employment; that the complainant was employed as a general operative and not as a carpenter and therefore, the REA does not apply to him; and that he received proper notice for the termination of his employment. The respondent furthermore states that a number of employees, both Irish and non-Irish, had their employment terminated during 2007 due to fluctuations in business.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against, discriminatorily dismissed and harassed on the ground of race within the meaning 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 hearing of the complaint, the complainant's representative withdrew the complaints regarding the REA and the complaint of harassment.
4.4. With regard to his complaint of not having received a contract of employment, the complainant specified that he did never see the contract document in the Latvian language which the respondent had supplied with their submission to the Tribunal. He further stated that the two Lithuanian workers who started with him were not shown the corresponding Lithuanian document, either. The complainant was not able to say whether the respondent's Irish workers received contracts or statements of their terms and conditions of employment.
4.5. With regard to receiving health and safety information, the complainant stated that the site had a safety officer who satisfied himself that the complainant and all other workers had a FAS SafePass. The complainant further stated that the safety officer provided site-specific safety information to all workers. The complainant did not make a case that he was unable to understand these explanations.
4.6. Based on the complainant's evidence as summarised in the preceding paragraphs, I do not find that the complainant has established a prima facie case of less favourable treatment in his terms and conditions of employment on the ground of race, and that this part of his complaint must therefore fail.
4.7. I am now turning to the complainant's complaint of discriminatory dismissal. The complainant, who had worked for the respondent since January 2004, had his employment terminated in September 2007. The complainant's representative specified that it was accepted that a redundancy situation existed in the respondent company at the material time, and that this is the reason why the complainant's employment with the respondent came to an end. However, the complainant's representative alleged that the respondent's Irish workers received their redundancy monies promptly, whereas his client had to file a complaint with the Employment Appeals Tribunal and did not receive his redundancy money until May 2009. The complainant's representative was not in a position to adduce evidence to support this contention. However, he submitted that I should interpret his request to the respondent, in his Notice for Particulars dated 23 November 2007, for "a full list of all employees employed by you in the period of 2 years to the date my employment ceased and to date with particulars of job descriptions and rates of pay" as encompassing the treatment of the redundancy of workers, and draw inferences pursuant to the provisions of S. 81 of the Acts in favour of his client.
4.8. In terms of whether the complainant's alleged situation is covered by the Acts, I find that S. 8(6) of the Acts does indeed cover less favourable treatment of workers, connected to the proscribed grounds, in situations of redundancy. However, I do not find that the query quoted above falls within the parameters of the provisions of S. 81. S. 81 states that
. -- If, in the course of proceedings on a reference under section 77(3) or of an investigation under section 79, it appears to the Circuit Court or the Director, as the case may be --
(a) that the respondent failed to supply information which the complainant sought by questions under section 76 and which was in the respondent's possession or power, or
(b) that the information supplied by the respondent in response to any such question was false or misleading or was otherwise not such as the complainant might reasonably have required in order to make the decision referred to in section 76(1),
the Circuit Court or the Director (as the case may require) may draw such inferences as seem appropriate from the failure to supply the information or, as the case may be, for the supply of information as mentioned in paragraph (b). [emphasis added]
4.9. S. 76 (2), in turn, defines "material information", this being the kind of information that as per S. 76(1) the complainant may seek from the respondent, as
(a) information as to Y's reasons for doing or omitting to do any relevant act and as to any practices or procedures material to any such act,
(b) information, other than confidential information, about the remuneration or treatment of other persons who stand in relation to Y in the same or a similar position as X, or
(c) other information which is not confidential information or information about the scale or financial resources of the employer's business and which, in the circumstances of the case in question, it is reasonable for X to require.
4.10. I find that the first two of these paragraphs are relevant to the case on hand. However, I do not find that the very generalised query which the complainant's representative invites me to draw inferences from is sufficiently specific to relate to the alleged discriminatory treatment with regard to the complainant's redundancy. In fact, the specifics of this part of the complaint as outlined in the hearing were never put to the respondent in writing prior to the hearing, neither in the complainant's submissions nor in the EE2 form, which is the form provided under S. 76 of the Acts to enable complainants to seek further information from respondents. In this regard, I also take account of the decision of the Labour Court in Melbury Developments .v Valpeters [EDA0917], in which the Court held unequivocally that the onus of establishing a prima facie case is on the complainant, and that queries made under S. 76 need to be sufficiently specific to engage the provisions of S. 81.
4.11. Based on all of the foregoing, I find that the complainant has failed to establish a prima facie case of less favourable treatment in connection with his redundancy on the ground of his nationality, and that requests for information put to the respondent are too vague for me to utilise the provisions of S. 81 of the Acts in favour of the complainant.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate against Mr Roman Manolijs in his terms and conditions of employment, and did not discriminatorily dismiss him, on the ground of his nationality pursuant to S. 6(2)(h) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
12 February 2010