Equality Officer’s Decision No: DEC-E/2010/003
Parties
Salapatek
(Represented by Richard Grogan and Associates – Solicitors)
And
Coalport Building company Ltd
File No: EE/2007/17
Date of issue 18 January, 2010
Headnotes:Employment Equality Acts, 1998&2007 sections 6,8, 14A and 77 – discriminatory treatment - discriminatory dismissal- harassment - race -prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Adam Salapatek, who is a Polish 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, (ii) harassed by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts and (iii) 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 May, 2005 and July, 2006. He contends that during his period of employment he was (i) treated less favourably as regards his conditions of employment and (ii) harassed by the respondent on the basis of his Polish nationality contrary to the Employment Equality Acts, 1998 and 2004. He also contends that he was dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Polish 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 8 January, 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 23 March, 2009, the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 19 November, 2009. A small number of points arose at the Hearing which required clarification and gave rise to correspondence between the Equality Officer and the parties. This process concluded on 3 December, 2009.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant, who is a Polish national, commenced employment as a General Operative with the respondent on 16 May, 2005. He states that the entire period of his employment was spent on a site in North County Dublin. The complainant 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 [1] 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 seven other General Operatives employed on the site - Irish, Polish, Rumanian 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 and submits that this failure constitutes 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 [2] in this regard. The complainant states that he attended the induction training shortly after he commenced employment but it was delivered in English. He also states that he received training on working at heights, safety training on operating a high powered nail gun, health and safety talks on driving a dumper on site and training on operating as a banksman over the period of his employment but this was delivered in English, although he understood most of it.
3.3 The complainant contends that the Registered Employment Agreement (REA) for the Construction Industry requires the respondent to join the complainant in the Construction Workers’ Pension and Sick Pay Scheme and to facilitate his membership of an appropriate trade union. He states that he was never joined in such a scheme and rejects the respondent's assertion that it brought this entitlement to his attention and he refused to join because of the financial implications for him. The complainant rejects similar assertions by the respondent as regards trade union membership. It is submitted on behalf of the complainant that the respondent’s behaviour on these issues constitutes unlawful discrimination of him. In the course of the Hearing the complainant was unable to say whether or not any of the other employees, including the Irish employees, who were engaged at the same time as him, were joined in the Scheme or were members of a trade union.
3.4 The complainant states that he was leaving the site at the end of his shift on 21 July, 2006 when his Foreman approached him and asked him to remain on to do additional work. He adds that when he asked whether or not he was to be paid for this additional work, as he had worked late on 3/4 previous occasions and had not been paid, the Foreman told him that if he didn't remain at work then "don't come back". The complainant states that he left the site immediately, returning the next day to retrieve his belongings. He rejects the respondent's assertion that he left the site early that day and told the Foreman he was leaving to go to a better job. It is submitted on behalf of the complainant that this constitutes discriminatory dismissal of him on grounds of race contrary to the Acts.
3.5 The complainant states that on several occasions he was called a "f****** Russian" by work colleagues. He adds that he reported this to the Site Foreman but nothing was done about it. He states that he asked if there was a policy on harassment but he received no reply.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent accepts that the complainant was not given a written contract of employment or written terms and conditions during his period of employment. It states that the contract with the complainant was a verbal one and any terms would have been set out to the complainant by the Site Foreman on recruitment, using the services of another employee to translate and this was the process it operated at that time for all General Operatives. The respondent states that the complainant was given the relevant points of health and safety issues during the Site Safety Induction on 17 May, 2005 and subsequent Toolbox Meetings, using the services of another employee to translate. It adds that health and safety documentation was displayed in canteen areas in English and Polish. The respondent states that it brought the existence of the union and the sick pay scheme to the attention of the respondent and he declined to join. It therefore rejects that it discriminated against the complainant on the basis of his nationality contrary to the Acts. The respondent is unable to comment on the alleged harassment of the complainant but accepts that there was no internal policy on harassment in operation at that time.
4.2 The respondent states that work on the site had been stopped on foot of a High Court Order on 26 June, 2006 following an incident at the site involving a member of the public. It adds that the site was due for inspection by the Health and Safety Authority on 21 July, 2006 and around six General Operatives, including the complainant, were engaged on doing the necessary remedial works. It states that the staff who lived locally were asked to commence work that day at 6am and were permitted to finish at 2pm. The complainant did not commence until 8am and when he attempted to finish at 2pm the Site Foreman- Mr. K - approached him and asked him where he was going. The respondent states the complainant told him he was leaving for a better job and it rejects the assertion that Mr. K told him not to come back. It therefore rejects that assertion that it dismissed the complainant at all submitting that he terminated his own employment.
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 employment (ii) harassed the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A 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. 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 of the parties at the Hearing.
5.2 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 Polish.
5.3 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 complainantdoes not discharge the initial probative burden required of him his case cannot succeed.
5.4 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 ten other General Operatives employed at the same time as him - Irish, Romanian, Polish and Lithuanian - but he was unable to say if any of those employees received written contracts of employment or other documentation.
5.5 In a recent Determination the Labour Court[3], 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 burdenin 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."
5.6 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 could be inferred. I have reached a similar conclusion as regards the failure of the respondent to join the complainant in the Construction Workers’ Pension and Sick Pay Scheme or to facilitate his membership of the appropriate trade union as required by the relevant Registered Employment Agreement. In this regard I feel it is worth mentioning that I believe the more likely scenario is that the respondent did not draw the attention of any of its employees to the existence of the Scheme. Enforcement of any alleged breach of the Registered Employment Agreement is a matter for the Labour Court in accordance with the Industrial Relations Act 1946 (as amended) and not for this Tribunal.
5.7 The next element of the complainant's claim concerns the alleged failure of the respondent to provide the complainant with the appropriate health and safety training and documentation in a language he could understand. The respondent produced evidence which clearly demonstrated that it did provide health and safety training and that the complainant attended these workshops, in addition to more specific training on particular tasks. I note that whilst this training was delivered in English, the complainant accepted at the Hearing that he was able to understand most of it. Certain aspects of health and safety were also translated into Polish - the complainant's first language. Having evaluated all of the evidence advanced by the parties on this issue I am not satisfied that the complainant has established a prima facie case of discrimination
5.8 The respondent asserts that the complainant resigned from his position of his own accord on 21 July, 2006 - an assertion rejected by the complainant. It is common case that on the day in question the Health and Safety Authority was due to inspect the site on foot of a previous accident which had occurred on the site. I accept the respondent's evidence that a small number of General Operatives (including the complainant) had been retained on the site to carry out the necessary remedial works in advance of the inspection and that some employees were asked to report for duty at 6am that day and could finish at 2pm. In the course of the Hearing the complainant stated that his normal starting time was 8am and he was unable to say whether or not he started work at 6am that day. The respondent states he did not report for duty until 8am. The respondent further states that the complainant was approached by Mr. K when he attempted to leave the site at 2pm that day, an assertion disputed by the complainant who contends Mr. K approached him at 5:30 - the normal finishing time. Furthermore the complainant states that Mr. K told him that if he was not prepared to remain at work then he was not to report for duty the next day - the respondent rejects this stating the complainant told Mr. K he was leaving for a better job.
5.9 Having evaluated all the evidence presented by the parties on this I find, on balance, the respondent's evidence on the attendance pattern of the complainant that day to be more compelling. I am also satisfied, on balance, that Mr. K approached the complainant when he attempted to leave the site and used the words attributed to him. In this regard I have no doubt that the complainant was entitled to assume he was dismissed given Mr. K's position of authority as Site Foreman. However, I am not satisfied that his (Mr. K's) behaviour was influenced by the complainant's nationality. I consider it far more likely that he was annoyed at the complainant for attempting to leave work at the same time as those employees who had reported for duty earlier than usual that day and whilst his reaction might have been unfair, no evidence has been adduced by the complainant to support his assertion that his nationality was a factor which influenced Mr. K's behaviour. It is clear that the termination of the complainant's employment falls short of the procedures required by the Code of Practice on Grievance and Disciplinary Procedures[4]. However, the claim before this Tribunal is not one of unfair dismissal, rather it is that the complainant's dismissal was contrary to the employment equality legislation on grounds of race. As the Labour Court recently commented it has dealt with many cases "where employers are accused of dismissing workers without resorting to the appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside Ireland."[5]. I find therefore the complainant has failed to establish facts from which it could be inferred that the termination of his employment was influenced in any way by his nationality and this element of his complaint must fail.
5.10 The complainant contends that he was called a "f****** Russian" on several occasions by colleagues and when he reported this to his Foreman he took no action. The complainant was however, unable to state when this alleged behaviour commenced or who perpetrators were. In the circumstances, I am not satisfied that the uncorroborated evidence of the complainant is sufficient to discharge the initial probative burden required of him and this aspect of his complainant must fail.
6. DECISION OF THE EQUALITY OFFICER
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, health and safety instruction and documentation, trade union membership and the Construction Workers' Pensions and Sick Pay Scheme,
(ii) that the complainant has failed to establish a prima facie case of harassment on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts, and
(iii) that the complainant has failed to establish a prima facie case that he was 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 and consequently his complaint fails.
_______________________________________
Vivian Jackson
Equality Officer
18 January, 2010
[1] DEC-E2008-020
[2] DEC-E2008-020
[3] Melbury Developments v Arturs Valpetters EDA 0917
[4] SI 146 of 2000
[5] Muleadys Ltd v Aidotas Gedrimas EDA 0922
Equality Officer’s Decision No: DEC-E/2010/003
Parties
Salapatek
(Represented by Richard Grogan and Associates – Solicitors)
And
Coalport Building company Ltd
File No: EE/2007/17
Date of issue 18 January, 2010
Headnotes:Employment Equality Acts, 1998&2007 sections 6,8, 14A and 77 – discriminatory treatment - discriminatory dismissal- harassment - race -prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Adam Salapatek, who is a Polish 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, (ii) harassed by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts and (iii) 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 May, 2005 and July, 2006. He contends that during his period of employment he was (i) treated less favourably as regards his conditions of employment and (ii) harassed by the respondent on the basis of his Polish nationality contrary to the Employment Equality Acts, 1998 and 2004. He also contends that he was dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Polish 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 8 January, 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 23 March, 2009, the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 19 November, 2009. A small number of points arose at the Hearing which required clarification and gave rise to correspondence between the Equality Officer and the parties. This process concluded on 3 December, 2009.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant, who is a Polish national, commenced employment as a General Operative with the respondent on 16 May, 2005. He states that the entire period of his employment was spent on a site in North County Dublin. The complainant 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 [1] 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 seven other General Operatives employed on the site - Irish, Polish, Rumanian 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 and submits that this failure constitutes 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 [2] in this regard. The complainant states that he attended the induction training shortly after he commenced employment but it was delivered in English. He also states that he received training on working at heights, safety training on operating a high powered nail gun, health and safety talks on driving a dumper on site and training on operating as a banksman over the period of his employment but this was delivered in English, although he understood most of it.
3.3 The complainant contends that the Registered Employment Agreement (REA) for the Construction Industry requires the respondent to join the complainant in the Construction Workers’ Pension and Sick Pay Scheme and to facilitate his membership of an appropriate trade union. He states that he was never joined in such a scheme and rejects the respondent's assertion that it brought this entitlement to his attention and he refused to join because of the financial implications for him. The complainant rejects similar assertions by the respondent as regards trade union membership. It is submitted on behalf of the complainant that the respondent’s behaviour on these issues constitutes unlawful discrimination of him. In the course of the Hearing the complainant was unable to say whether or not any of the other employees, including the Irish employees, who were engaged at the same time as him, were joined in the Scheme or were members of a trade union.
3.4 The complainant states that he was leaving the site at the end of his shift on 21 July, 2006 when his Foreman approached him and asked him to remain on to do additional work. He adds that when he asked whether or not he was to be paid for this additional work, as he had worked late on 3/4 previous occasions and had not been paid, the Foreman told him that if he didn't remain at work then "don't come back". The complainant states that he left the site immediately, returning the next day to retrieve his belongings. He rejects the respondent's assertion that he left the site early that day and told the Foreman he was leaving to go to a better job. It is submitted on behalf of the complainant that this constitutes discriminatory dismissal of him on grounds of race contrary to the Acts.
3.5 The complainant states that on several occasions he was called a "f****** Russian" by work colleagues. He adds that he reported this to the Site Foreman but nothing was done about it. He states that he asked if there was a policy on harassment but he received no reply.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent accepts that the complainant was not given a written contract of employment or written terms and conditions during his period of employment. It states that the contract with the complainant was a verbal one and any terms would have been set out to the complainant by the Site Foreman on recruitment, using the services of another employee to translate and this was the process it operated at that time for all General Operatives. The respondent states that the complainant was given the relevant points of health and safety issues during the Site Safety Induction on 17 May, 2005 and subsequent Toolbox Meetings, using the services of another employee to translate. It adds that health and safety documentation was displayed in canteen areas in English and Polish. The respondent states that it brought the existence of the union and the sick pay scheme to the attention of the respondent and he declined to join. It therefore rejects that it discriminated against the complainant on the basis of his nationality contrary to the Acts. The respondent is unable to comment on the alleged harassment of the complainant but accepts that there was no internal policy on harassment in operation at that time.
4.2 The respondent states that work on the site had been stopped on foot of a High Court Order on 26 June, 2006 following an incident at the site involving a member of the public. It adds that the site was due for inspection by the Health and Safety Authority on 21 July, 2006 and around six General Operatives, including the complainant, were engaged on doing the necessary remedial works. It states that the staff who lived locally were asked to commence work that day at 6am and were permitted to finish at 2pm. The complainant did not commence until 8am and when he attempted to finish at 2pm the Site Foreman- Mr. K - approached him and asked him where he was going. The respondent states the complainant told him he was leaving for a better job and it rejects the assertion that Mr. K told him not to come back. It therefore rejects that assertion that it dismissed the complainant at all submitting that he terminated his own employment.
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 employment (ii) harassed the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A 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. 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 of the parties at the Hearing.
5.2 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 Polish.
5.3 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 complainantdoes not discharge the initial probative burden required of him his case cannot succeed.
5.4 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 ten other General Operatives employed at the same time as him - Irish, Romanian, Polish and Lithuanian - but he was unable to say if any of those employees received written contracts of employment or other documentation.
5.5 In a recent Determination the Labour Court[3], 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 burdenin 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."
5.6 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 could be inferred. I have reached a similar conclusion as regards the failure of the respondent to join the complainant in the Construction Workers’ Pension and Sick Pay Scheme or to facilitate his membership of the appropriate trade union as required by the relevant Registered Employment Agreement. In this regard I feel it is worth mentioning that I believe the more likely scenario is that the respondent did not draw the attention of any of its employees to the existence of the Scheme. Enforcement of any alleged breach of the Registered Employment Agreement is a matter for the Labour Court in accordance with the Industrial Relations Act 1946 (as amended) and not for this Tribunal.
5.7 The next element of the complainant's claim concerns the alleged failure of the respondent to provide the complainant with the appropriate health and safety training and documentation in a language he could understand. The respondent produced evidence which clearly demonstrated that it did provide health and safety training and that the complainant attended these workshops, in addition to more specific training on particular tasks. I note that whilst this training was delivered in English, the complainant accepted at the Hearing that he was able to understand most of it. Certain aspects of health and safety were also translated into Polish - the complainant's first language. Having evaluated all of the evidence advanced by the parties on this issue I am not satisfied that the complainant has established a prima facie case of discrimination
5.8 The respondent asserts that the complainant resigned from his position of his own accord on 21 July, 2006 - an assertion rejected by the complainant. It is common case that on the day in question the Health and Safety Authority was due to inspect the site on foot of a previous accident which had occurred on the site. I accept the respondent's evidence that a small number of General Operatives (including the complainant) had been retained on the site to carry out the necessary remedial works in advance of the inspection and that some employees were asked to report for duty at 6am that day and could finish at 2pm. In the course of the Hearing the complainant stated that his normal starting time was 8am and he was unable to say whether or not he started work at 6am that day. The respondent states he did not report for duty until 8am. The respondent further states that the complainant was approached by Mr. K when he attempted to leave the site at 2pm that day, an assertion disputed by the complainant who contends Mr. K approached him at 5:30 - the normal finishing time. Furthermore the complainant states that Mr. K told him that if he was not prepared to remain at work then he was not to report for duty the next day - the respondent rejects this stating the complainant told Mr. K he was leaving for a better job.
5.9 Having evaluated all the evidence presented by the parties on this I find, on balance, the respondent's evidence on the attendance pattern of the complainant that day to be more compelling. I am also satisfied, on balance, that Mr. K approached the complainant when he attempted to leave the site and used the words attributed to him. In this regard I have no doubt that the complainant was entitled to assume he was dismissed given Mr. K's position of authority as Site Foreman. However, I am not satisfied that his (Mr. K's) behaviour was influenced by the complainant's nationality. I consider it far more likely that he was annoyed at the complainant for attempting to leave work at the same time as those employees who had reported for duty earlier than usual that day and whilst his reaction might have been unfair, no evidence has been adduced by the complainant to support his assertion that his nationality was a factor which influenced Mr. K's behaviour. It is clear that the termination of the complainant's employment falls short of the procedures required by the Code of Practice on Grievance and Disciplinary Procedures[4]. However, the claim before this Tribunal is not one of unfair dismissal, rather it is that the complainant's dismissal was contrary to the employment equality legislation on grounds of race. As the Labour Court recently commented it has dealt with many cases "where employers are accused of dismissing workers without resorting to the appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside Ireland."[5]. I find therefore the complainant has failed to establish facts from which it could be inferred that the termination of his employment was influenced in any way by his nationality and this element of his complaint must fail.
5.10 The complainant contends that he was called a "f****** Russian" on several occasions by colleagues and when he reported this to his Foreman he took no action. The complainant was however, unable to state when this alleged behaviour commenced or who perpetrators were. In the circumstances, I am not satisfied that the uncorroborated evidence of the complainant is sufficient to discharge the initial probative burden required of him and this aspect of his complainant must fail.
6. DECISION OF THE EQUALITY OFFICER
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, health and safety instruction and documentation, trade union membership and the Construction Workers' Pensions and Sick Pay Scheme,
(ii) that the complainant has failed to establish a prima facie case of harassment on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of those Acts, and
(iii) that the complainant has failed to establish a prima facie case that he was 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.
and consequently his complaint fails.
_______________________________________
Vivian Jackson
Equality Officer
18 January, 2010