EQUALITY OFFICER'S DECISION NO: DEC-E/2010/014
PARTIES
VAICIULIS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
SECUREZONE MANHOUR LTD.
(IN LIQUIDATION)
File No: EE/2007/361
Date of issue 15 February, 2010
Headnotes: Employment Equality Acts, 1998-2007 sections 6 and 8,- discriminatory treatment - conditions of employment - prima facie case.
1. DISPUTE
This dispute involves a claim by Mr. Deividas Vaiciulis, who is a Lithuanian national, that he was 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 - 2007 and contrary to section 8 of those Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a Security Operative between March, 2005 and April, 2007. He contends that during his period of employment he was treated less favourably as regards his conditions of employment on grounds of race (Lithuanian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998- 2007 to the Equality Tribunal on 16 July, 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 27 January, 2010. The respondent was represented at the Hearing by the appointed Liquidator.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Lithuanian national, commenced employment as a Security Operative with the respondent on 27 March, 2005. He states that he received a contract of employment but that he did not understand it because it was in English. He adds that his Manager went through it with him in English and that no translation, neither a professional translation nor an informal translation from another employee, was provided. It is argued on his behalf that this constitutes less favourable treatment of him contrary to the Acts and in support of this contention the complainant seeks to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete . In the course of the Hearing the complainant stated that there were 3/4 other Security Operatives employed on the site at any given time and that over his period of employment these employees were Irish, Lithuanian, Latvian and African. He was unable to confirm whether or not the respondent had provided any of these employees with interpretation as regards their contracts of employment.
3.2 The complainant states that the respondent failed to provide him with a health and safety statement or health and safety documentation in a language which he could understand. He further states that he received no health and safety training at all during his employment. He accepts that he received a copy of the respondent's "Standard Operational Procedures and Code of Conduct" but states that he did not understand it at the time he signed it. He adds that the contents of this documentation was not translated for him by either a professional translator or another employee at the time. In the course of the Hearing the complainant was unable to say whether or not any of the other Security Operatives employed at the same time as him received any health and safety training or documentation or had any such material translated for them. It is submitted on his behalf that the respondent's actions 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 assigned to a number of building sites, mostly in North County Dublin. He adds that during his period of employment he always worked night shifts and weekends. He only worked day shifts on the rare occasions he was asked to provide cover due to absenteeism. He further states that Irish employees never worked weekends and he was aware of one only Irish employee who worked night shifts on a regular basis. In the course of the Hearing the complainant confirmed that non-Irish employees worked day shifts. The complainant states that when he requested weekday shifts in the normal course of his working week the Supervisor ignored his request. It was submitted on the complainant's behalf that the allocation of almost exclusively night and weekend shifts to him constitutes discrimination of him contrary to the Acts. In this regard the complainant seek to rely on the Decision of this Tribunal in Cers & Eimas v Securezone Manhours .
3.4 Finally, the complainant states that he was not paid the appropriate Sunday and Weekend premium pay rates as agreed by the Joint Labour Committee (JLC) for the security industry. He adds that the contents of this document were never explained to him and he was therefore unaware of his entitlements under it. It is submitted on his behalf that this constitutes discrimination of him contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
The respondent was represented by the appointed Liquidator at the Hearing. However, this representative was unable to advance any evidence in support of the respondent's case in the course of the Hearing.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts as regards his conditions of employment. 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 Section 6(1) of the Employment Equality Acts, 1998 - 2007 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.
5.3 Section 85A of the Employment Equality Acts 1998-2007 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.
5.4 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."
5.5 The first issue raised by the complainant relates to the respondent's failure to provide him with either a contract of employment in a language he could understand or interpretation of his contract of employment (which was prepared in English) into a language he could understand. In 58 Complainants v Goode Concrete this Tribunal held that in circumstances where an employer provides its employees with contracts of employment, it constitutes less favourable treatment of non-Irish employees if the employer provides them with a contract in English and not in a language which they can understand. The Equality Officer went on to say in that Decision that if an employer is not in a position to provide contracts in different languages it should at the very minimum ensure that the contents of the contract is explained to those employees and have them sign a document confirming that the contract had been explained to them. In the instant case it is the complainant's uncontested evidence that the contact of employment he signed was not translated or explained to him in a language he understood. The respondent filed a submission on the complaint prior to the Tribunal being notified it had been placed into Liquidation. I am satisfied from that submission that the contract of employment signed by the complainant is a standard one which it issued to all employees, regardless of their nationality or their ability to understand the English language. In the circumstances I find that the complainant has established a prima facie case of discrimination, which the respondent has failed to rebut.
5.6 The complainant also submits that the respondent's failure to furnish him with a health and safety statement/documentation and health and safety training constitutes less favourable treatment of him contrary to the Acts. I note that the complainant accepts he received a copy of the respondent's "Standard Operational Procedures and Code of Conduct" - a document which was appended to the respondent's submission. This document deals with the code of conduct - hours, uniform, timekeeping etc. which employees are required to abide by in the discharge of their duties and in my view are an extension of the contract of employment, rather than issues concerning health and safety. The complainant stated that he received no other documentation from the respondent connected with health and safety. He was unable to say whether or not any of the other Security Operatives employed during his period of employment with the respondent received any health and safety documentation or training from the respondent. Having given careful consideration to the matter I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect of the provision/non provision of the appropriate health and safety training and documentation could be inferred.
5.7 The complainant states the during the entire period of his employment with the respondent he was assigned night and weekend shifts and that when he requested some day shifts he was ignored by the Supervisor. He adds that whilst there was one Irish employee who regularly worked night shifts the vast majority of those employees who worked nights were non-Irish nationals. In addition, he asserts that Irish employees were never assigned the weekend shifts and that the vast majority of day shifts were assigned to Irish employees. The complainant was however unable to say the basis upon which shifts were assigned. In addition, he was unable to say whether any Irish employee working nights was accommodated with a move to day shifts on request or if any Irish employee commencing after him was immediately assigned day shifts. As the Labour Court held in Melbury Developments v Arturs Valpetters "knowledge of how the complainant's fellow workers were treated is not exclusively or almost exclusively within the knowledge of the Respondent. Nor could it be said that it is peculiarly within the range of the Respondent's capacity of proof. It is also plainly within the knowledge of those other workers. The complainant could have sought to ascertain from those workers if they were treated as sub-contractors or employees.". The Court went on to observe "there is a provision for the obtaining of information from a Respondent under Section 76 of the Acts which is intended to be in ease of a Complainant who would otherwise be unable to obtain necessary proofs in order to process a complaint under the Acts.....This procedure was utilised in this case but questions were not put concerning the employment status ascribed to other employed by the Respondent.". In the instant case the complainant did not enquire from his fellow workers if they knew the basis upon which they were assigned their shifts. In addition, the procedure prescribed under section 76 of the Acts was utilised but questions concerning the assignment of shifts etc. were not put to the respondent. In light of the foregoing and having carefully considered the arguments advanced by the parties I am satisfied that all the complainant has proffered in support of his contention that he was treated less favourably is a mere assertion unsupported by any evidence - a proposition rejected by the Labour Court as being insufficient to discharge the initial probative burden required of him (see paragraph 5.6 above). I therefore find that the complainant has failed to establish a prima facie case of unlawful discrimination contrary to the Acts in respect of this element of his complaint.
5.8 The final aspect of the complainant's case relates to aspects of his employment governed by the relevant JLC. Both this Tribunal and the Labour Court have indicated on several previous occasions that complaints in relation to the non-implementation of terms of JLC's is a matter governed by the Industrial Relations Acts and that as such no cause of action rests under equality legislation unless the terms of same have been applied in a discriminatory manner. The complainant adduced no evidence to support such a proposition and having regard to the Labour Court's dictum in Melbury Developments v Arturs Valpetters at paragraph 5.6 above his complaint on this issue cannot succeed.
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, 1998-2007 and contrary to section 8 of those Acts in respect of those aspects of his conditions of employment connected with health and safety instruction/ documentation, the assignment of his shifts and the application of the JLC for the Security Industry.
(ii) that the respondent discriminated against the complainant on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts in respect of those aspects of his conditions of employment connected with his contract of employment.
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 €1,000 by way of compensation for the distress suffered by him as a result of this discrimination. This award does not include any element of remuneration and is not therefore subject to the PAYE/PRSI code.
_______________________________________
Vivian Jackson
Equality Officer
15 February, 2010