EDA101

Introduction.

Mr. Arbuzovs, Mr. Mjasojedovs, Mr. Plonkins are of Latvian nationality. Mr. Ostojic is of Croatian nationality. All were employed by the Respondent as General Labourers.

The claims of discriminatory dismissal by Mr. Arbuzovs, Mr. Plonkins and Mr.Ostojic were withdrawn at the hearing of the Appeal before the Labour Court on 1st December 2009. The claim by Mr. Ostojic that he suffered victimisation and a victimisatory dismissal was also withdrawn at that hearing.

The Complainants’ Case

Mr. Arbuzovs commenced employment with the Respondent on 22nd April 2005 for a very short period and recommenced again on 27 May 2005; Mr. Plonkins and Mr. Mjasojedovs commenced employment in June 2005, and Mr. Ostojic on 23rd September 2004.

Mr. Richard Grogan, Legal Representative for the complainant submitted that the Respondent discriminated against them when it failed to apply the terms of the Registered Employment Agreement (REA) for the Construction Industry until March 2006. He also submitted that they were not entered into the Construction Workers Pension Scheme in accordance with the provisions of the REA until August 2005 in the case Mr. Ostojic; and not until February 2006 in the case of Mr. Arbuzovs, Mr. Plonkins and Mr. Mjasojedovs.

Mr. Grogan also submitted that by not providing interpretation facilities during health and safety meetings, the Respondent was in breach of the Act.

He submitted that as the Complainants were non-nationals the Respondent had a responsibility to take special measures to protect them.

The Respondent’s Case

Ms. Sil� O’Kelly, B.L. on behalf of the Respondent denied the allegations of discrimination against all four Complainants.

She informed the Court that the Respondent was a small family owned business with no dedicated human resources representative. She submitted that both Irish and non-national employees were all treated the same. At the time of the Complainants’ employment they employed approximately 50 staff, about 10% of whom were foreign nationals.The Respondent submits that they did not issue any staff with contracts of employment and the terms and conditions of employment of all staff were dealt with in the same way. Therefore, not issuing contracts to the Complainants and not employing them in accordance with the REA and other legislation could not be seen to be discriminatory.

She submitted that all employees were treated the same way in relation to pay. Their pay was negotiated when they started on an individual net basis and was dependent on their experience. Employees who had originally been employed to work from the company’s base in County Clare and who were then asked to work more than 30 miles away were entitled to and were paid a Lodging Allowance.

The Respondent submitted that all the Complainants were inducted on health and safety matters on each site. The Complainants attended health and safety talks (known as “toolbox talks”). It submitted attendance sheets to the Court to demonstrate this. The Respondent further submitted that the Complainants never said that they did not understand the health and safety information being relayed to them. A Latvian foreman was present to give them any assistance they may have required; one of the Complainants had excellent English, one had good English and the other two had adequate English.

Findings and Conclusions:

As recorded above the claims on behalf of Mr. Arbuzous, Mr. Plonkins and Mr. Ostojic that they suffered discriminatory dismissal and that Mr. Ostojic suffered victimisation and a victimisatory dismissal in terms of Section 74(2) of the Acts were withdrawn during the course of the hearing, as a result of which the Court is not required to reach any findings or conclusion on that aspect of their case.

With regard to the Complainants’ case that each suffered discriminatory treatment on account of their race contrary to Section 6(2)(h) of the Acts on foot of non-implementation of the REA for the Construction Industry and contrary to Sections 8 and 9 of the Acts in relation to their conditions of employment regarding such collective agreement, two issues arise for consideration.

1.In relation to the non-implementation of the REA as a collective agreement by the Respondent, such complaint has no status and has no relevance under the Equality Acts 1998-2008. The Court has no power of redress to such a complaint. There may well be a controversy or issue in relation to its non implementation under the Industrial Relations Acts as the workers concerned were plainly construction workers as commonly understood, however no cause of complaint can be entertained under Equality legislation.

2.In relation to the more specific discrimination claim that their race was a factor in the non-implementation of the REA, the evidence adduced at the hearing was that all workers, whether of Irish origin or Non Irish origin, were treated in the same manner. Once the Respondent was made aware of the obligations to comply with the terms of the REA at the behest of SIPTU in March 2006, all workers pay rates and conditions of employment were modified to comply. At this time the Respondent also enrolled the workers in the CIF Pension, Assurance and Sick pay scheme. Thus the Complainants were not treated any differently by virtue of their race as claimed. Documentary evidence reviewed by the Court further showed that in some cases the Complainants enjoyed superior rates of pay in comparison to some of their Irish counterparts. The Court therefore cannot draw a conclusion that discrimination on grounds of race occurred in this case.

Regarding the assertion that the Respondent discriminated against each of the Complainants by failing to ensure all health and safety instruction was communicated in their national languages and that such a failure was both discriminatory and neglectful in terms of general duty of care, the Complainants made reference to a number of cited cases heard and adjudicated on by the Court. These includeHannon Poultry case DEC E2006 050,Determination No EED 024, A Company v A Workerand inDetermination No EED 048 Campbell Catering Limited v Adernonke Rasaq,where the Court stated“special measures may be necessary in the case of non-national workers”to afford them translation or other facilities in relation to work rules and conditions of employment so as to have full understanding of same.

In theRasaqcase Counsel referred to the need for companies employing non-nationals to recognise the difficulties which may arise from lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture and to make appropriate adjustments.

In this case it appears from the evidence that the Respondent undertook all that was reasonably required to deliver appropriate health and safety training in the context of holding “tool box talks “ at intervals. Evidence was also given that one complainant had a very good grasp of English, two had good English, while the remaining one did not have a good command or understanding. However, in order to assist the Complainants the Respondent provided the attendance of a Latvian foreman for some of these sessions.

The Court has considered these facts and in particular the comparability to the facts of theRasaqcase. In the latter case the facts related to a dismissal of an individual in circumstances where a full understanding of a disciplinary process and procedure was required, especially as dismissal was a potential outcome.

The situation in relation to health and safety instructions is somewhat different. While health and safety instruction is obviously important, the Court is satisfied that such instruction was generally imparted to all workers for their well being on site and that the Complainants would have reasonable experience from previous work practice whether in Ireland or elsewhere. No complaints were made to the Respondent at any time about the manner of the instruction or a failure to fully understand its nature or content. Therefore, the Court concludes that no discriminatory case has been made out under this complaint.

Under Section 85A of the Act, the burden of proof is on the Complainants to establish primary facts from which an inference of discrimination can be drawn. It is the view of the Court that the Complainants have failed to establish such primary facts and accordingly their claim must fall at the first hurdle.

Decision:

The Complainants have failed to establish a prima facie case of discrimination on the race ground under Section 6(2)(4) and Sections 8 of the Employment Equality Acts 1998-2008. Accordingly the Court dismisses their appeal.



Signed on behalf of the Labour Court



Caroline Jenkinson
15th Janurary, 2009______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.