THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 117
PARTIES
Mr. Vytautas Akucevicius, Mr. Ingus Brauska and Mr. Andris Baturo
(represented by Richard Grogan and Associates, Solicitors)
and
Gordon Mooney Limited
File Reference: EE/2007/232
Date of Issue: 2nd July, 2010
File references: EE/2007/232 - DEC-E2010-117
Keywords
Employment Equality Acts 1998-2008 - Section 6 and 8 - discriminatory treatment - race - conditions of employment - discriminatory dismissal
1. Dispute
1.1 These cases concern complaints by Mr. Vytautas Akucevicius, who is a Lithuanian national, and Mr. Ingus Brauska and Mr. Andris Baturo, who are both Latvian nationals. They claim that they were discriminated against by Gordon Mooney Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of their conditions of employment and that they were dismissed in a discriminatory manner.
2. Delegation of the complaint
2.1 Mr. Vytautas Akucevicius and Mr. Ingus Brauska referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on the 14th May 2007. Mr. Andris Baturo referred his complaint on 15th May 2007. In accordance with her powers under section 75 of the Acts, the Director then delegated this case to me, James Kelly, an Equality Officer on the 25th November 2009 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, this is the date I commenced my investigation. A written submission was received from the complainants on the 3rd October 2008. No submission was received from the respondent. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 4th May 2010.
3. Summary of the Complainants' case
3.1 Mr. Vytautas Akucevicius was employed by the respondent as a labourer from July, 2006 until 18th December, 2006. He stated that there were a number of other employees of Lithuanian and Irish origin employed by the respondent in different roles during his period of employment. He claims that he did not receive a written contract of employment from the respondent, but he was not aware if any of the other workers received a written contract of employment either. He claims that he was not paid in accordance with the Registered Employment Agreement for the Construction Industry ('REA'). However, he was unsure what the other employees were paid. He claims that he was told there was no work, therefore he had to finish. He claims that the respondent owed him two weeks wages which he continually asked for but never received. He claims that all the foreign nationals were let go while he knew that some of the Irish workers were kept on. He named one Irish employee that was kept on but he did not know what his job was with the respondent. He claims that all the employees were owed money by the respondent. He claims that he heard that the Irish workers were eventually paid the money that they were owed. He claims that there was no foreman on the site and the owner would always arrive late into work. He claims that the Irish workers would take advantage of this and come in late, whereas the foreign nationals would always be on time. He claims that the Irish workers would tell the foreign nationals what jobs to do. He claims that he was unfairly treated and discriminatorily dismissed without any proper procedures because of his race.
3.2 Mr. Ingus Brauska was employed by the respondent initially as a labourer and then as a block layer from 3rd May 2006 until 18th December, 2006. He stated that there were a number of other employees of Latvian, Lithuanian and Irish origin employed by the respondent in different roles but he was not sure what the Irish workers were employed to do. He claims that he did not receive a written contract of employment. However, he was not aware if any of the other workers received a written contract. He also claims that he was not paid in accordance with the 'REA' for the Construction Industry. However, he was unsure what the other employees were paid. He claims that he was paid by cheque and these cheques would regularly bounce. He claims that the owner told all the workers that it was their right not to turn up for work if they were not getting paid. However, when Mr. Brauska and five others decided not to turn up for work, the owner called them and told them that they were dismissed because they were absent from work without permission. Mr. Brauska claims that he received a letter from the respondent dated 30th November 2006, a copy of which was presented to the Equality Tribunal as evidence. The letter was addressed to all employees and it warned of future reduction of staff numbers due to the lack of work. He claims that the respondent still owes him two weeks wages which he has continually asked for but never received. He claims that all the foreign nationals were let go while he knew that the Irish workers were kept on. He claims that all workers were owed money from the respondent including the Irish workers. He said that the foreman told him that the owner eventually paid all the Irish workers what they were owed. He claims that the Irish workers would take advantage while on site; picking jobs that suited them; arriving late and leaving early, whereas the foreign nationals would always be on time and not abuse the situation. He claims that he was dismissed without any proper procedures and he claims that he was treated like this because of his race.
3.3 Mr. Andris Baturo was initially employed by the respondent as a ground worker and then as a block layer from 23rd February, 2006 until 18th December, 2006. He stated that there were a number of other employees of various nationalities, including Irish origin, employed by the respondent during his period of employment. He submitted that he did not receive a written contract of employment. However, he believes no one else did either. He also claims that he was not paid in accordance with the 'REA' for the Construction Industry. However, he was unsure what the other employees were paid. Mr. Baturo also stated that he was paid by cheque and there were a number of these cheques that he could not cash as they were invalid. He claims that the respondent told him that there was no work and that he could stay at home. He claims that he called back to the respondent on a number of occasions to get the outstanding wages owed to him but without any success. He claims that he was dismissed without any proper procedures and was not given any reason for the dismissal by the respondent. He claims that he was dismissed from his employment because there was no work and the respondent did not have money to pay him, and because of his race. Mr. Baturo was unsure if the other Irish workers were kept on to work after he had finished there. The complainant claims that the Irish were treated better than the foreign nationals; the Irish would finish when they wanted, whereas he would not. He claims that the Irish also picked the jobs that suited them and he claims that he told the owner this.
3.4 The complainant also referred to a number of cases in support of his case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032) and Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001).
3.5 Prior to presenting the substantive case, the Legal representative for the complainants raised a preliminary issue for determination by the Tribunal. The complainants applied to have the name of the respondent changed from the legal entity notified on the referral form, Form EE1, to a different legal entity. They claim that the complainants never received any documentation from the employer to identify the exact and proper title of the employer. Accordingly, the complainants asked for the name of the respondent to be changed to an individual person rather than a Limited Company. The complainants did furnish as evidence copies of a pay slip containing a different name to that cited on the original referral forms, Form EE1, and they also provided a copy of letter on headed paper with various names including the name cited on the referral form, Form EE1.
4. Summary of the Respondent's case
4.1 The respondent did not attend nor was it represented at the Hearing.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case are whether or not the respondent discriminated against the complainant on the grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards his conditions of employment and discriminatory dismissal.
5.2 Section 85A of the Employment Equality Acts, 1998 to 2008 provides as follows: "(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary". This requires the complainants to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainants do not discharge the initial probative burden required of them the case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
Preliminary Issue - application to change the name of the respondent
5.3 I note the complainants' request to amend the respondent's name as they were unsure as to whom the correct respondent is in this case. I also note that they claim that they never received any documentation from their employer to establish same at the time. To this end I have carefully noted the chronological sequence of events in this case, namely,
- the complainants were employed up to the 18th December 2006;
- they referred their cases to the Equality Tribunal on the 14th and 15th May 2007 respectively, citing the respondent as Gordon Mooney Ltd;
- they had in their possession, at that time, documents (pay slip dated 18th August 2006 and a company letter dated 30 November 2006), which might cause them to question who the correct respondent is;
- The first date the preliminary issue was raised with the Tribunal was as part of their submission which was filed on the 3rd October 2008, some 21 months from the last occurrence of the alleged discriminatory act.
5.4 I am satisfied that the complainants clearly identified Gordon Mooney Ltd as the respondent on referral of these complaints to the Equality Tribunal. I am satisfied that the onus is with the complainants to identify the correct respondent in cases where they are seeking redress under the Acts. Section 77(4) defines the respondent as, "the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration terms relates or who is responsible for providing the benefit under the equality clause or who is alleged to be responsible for the victimisation". Section 77(5)(a) sets the referral date of a complaint at 6 months from the date of occurrence of the alleged discrimination in which a case must be referred. Section 77(5)(b) allows for that period to extend to not more than 12 months when an application is made to the Director or Circuit Court on a suitable reasonable cause.
5.5 I note the decision of the Labour Court in the case of @Resonance LTD -v- Rachel Coleman , which I am satisfied is a comparable situation to the case before me for consideration. In that case the complainant made an application to the Labour Court to have the name of the respondent changed from that originally recorded. I note the determination of the Chairman of the Labour Court, at the time, where he stated that,
"The Court cannot accede to this application [to change the name of respondent]. It has no powers under the Act to substitute one respondent for another, or to join another party as co- respondent. If a transfer of undertaking has occurred or, in effect, Resonance Limited is the same company as @Resonance Limited, it is for the claimant to establish this fact prior to bringing her claim and ensure that proceedings are issued against the correct respondent. (note my emphasis)
Equally, on the conclusion of this matter, the claimant may seek a declaration in the appropriate forum that there has been a transfer of undertaking or that Resonance Limited is, in effect, the same company as @Resonance Limited, but these are not matters on which this Court can adjudicate.
Having considered the issue in its entirety, I am satisfied that the complainants did have the evidence in their possession to identify the correct title of the respondent at the time of lodging their complaints. Notwithstanding that, I am satisfied that I have no power to change the name of the respondent as per the complainants' application. Accordingly, I will now consider the substantive case against the named respondent, Gordon Mooney Limited, which I am satisfied from the documents before me, is the correct respondent in this case.
Discriminatory Treatment - Conditions of Employment
5.6 Firstly, I will consider the issue that has been raised by all three complainants in relation to the respondent's failure to provide them with a written contract of employment and which they have contended constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. I note the complainants' evidence that there were workers of various nationalities employed by the respondent during their respective periods of employment, including those of Latvian, Lithuanian and Irish origin. However, the complainants were not aware if the respondent had issued any of the other employees, including those of Irish origin, employed at the same time with a written contract of employment. The complainants submitted that an Irish employee would have been aware of his/her rights under employment legislation, and therefore, would have insisted that the respondent comply with its obligations in terms of this aspect of their conditions of employment. It was therefore submitted that the Tribunal should infer that they have been subjected to less favourable treatment on the grounds of their race and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.7 In considering this issue, I have taken cognisance of the recent determination of the Labour Court in the case of Melbury Developments Limited and Valpeters . In that case the Labour Court stated, inter alia, that:
"Section 85A of the Act 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."
Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of less favourable treatment is insufficient to establish a prima facie case of discrimination under the Acts. Accordingly, I am satisfied that that the complainants have not adduced evidence from which I could reasonably conclude that they were treated less favourably than the Irish employees in relation to this aspect of their conditions of employment. Therefore, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaint.
5.8 The next issue raised by the complainants relates to the respondent's failure to pay them in accordance with the Registered Employment Agreement 'REA'. The complainants submit that this constitutes discriminatory treatment of them on the grounds of race contrary to the Acts. However, none of the complainants could present evidence as to whether or not the other employees (including those of Irish origin) employed by the respondent during their periods of employment there were paid in accordance with the 'REA'. Having regard to the evidence adduced, and in line with the determination of the abovementioned Melbury case, I am not satisfied that they have established any facts from which it could be inferred that they were treated less favourably than other workers of a different nationality (including those of Irish origin) in terms of the manner in which the 'REA' was applied to their conditions of employment. Therefore, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaint.
5.9 I also note the corroborative evidence that the sites in which the complainants were employed seemed to lack proper supervision or structure. The complainants' evidence is that the owner/foreman arrived late and the Irish employees seem to take advantage of this. However this does not in itself establish that the complainants were treated less favourably because of their race. The evidence would suggest that the complainants chose to turn up to work on time and chose to work full days, whereas the Irish workers chose not to do so. There is no evidence to suggest that the respondent condoned the behaviour of the Irish workers and enforced additional conditions on the foreign nationals. It would appear that the owner/foreman had no structures in place to supervise any of it employees. The complainants claim that there was an "Irish v Foreigner" culture evident in the respondent's sites where the Irish always seemed to have the easier time, e.g. come to work late and leave early; allowed to pick the site that suited them; tell the non-Irish national what to do. There was a suggestion of a culture of harassment by the Irish workers against the foreign nationals. However, on the day of the hearing, I note that all three complainants withdrew the harassment element of their complaint. I note the evidence from all three complainants that everyone was owed money by the respondent, both Irish nationals and non-Irish nationals alike, and that the cheques would regularly bounce. I also note that the complainants' claim that they had heard that the Irish were eventually paid the money that they were owed. I note that no evidence of a significant nature was presented to demonstrate to me that the Irish were eventually paid, other than the complainants claim that they "heard the Irish were paid". Again, I refer to the Labour Court's decision in Melbury, paragraph 5.7 above, where it refers for the need for factual evidence to establish positions which are otherwise mere speculation or assertions before an inference of discrimination can be drawn. I also note where the Labour Court goes on to say that "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. Its is also plainly within the knowledge of those other workers ....... If necessary those workers could have been required to attend at the hearing and testify as to how they were treated".
5.10 Accordingly, I am therefore not satisfied that the complainants, in the present cases, have adduced any evidence from which I could reasonably conclude that they were treated less favourably than other workers of a different nationality (i.e. those of Irish origin) in terms of how they were treated in comparison to the other employees in relation to this element of their complaint. Therefore, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaints.
Discriminatory Dismissal
5.11 The next issue that I must consider relates to the claim by the complainants that they were subjected to discriminatory dismissal on the grounds of their race. In considering this issue, I note that the complainants gave evidence that they were summarily dismissed by the respondent on 18th December, 2006 and not in line with any proper procedures. However, there is a variation in the evidence adduced as to their dismissal. The complainants stated that a number of other non-Irish national workers were dismissed whereas a number of Irish employees were retained in employment by the respondent on the site where they had been working.
5.12 In considering this issue I have listened carefully to the evidence in relation to each of the complainants, with regard to how they were dismissed while Irish workers were kept on. There is a distinct vagueness about the evidence presented. I would expect that since the complainants had worked with the respondent from 6 to 10 months that they should be able to identify who remained working with the respondent and the role or job that they carried out in the company. However, there were no definite identities of former colleagues still employed there after the complainants were let go. There was no evidence as to the number of employees who were kept on presented to me at the hearing. There was a significant lack of information in the complainants' evidence presented to me. In the circumstances, I am therefore satisfied that the complainants' uncontested evidence is not sufficient to establish a prima facie case of discrimination on this element of their complaints. A mere statement by the complainants that some Irish workers were still employed with the respondent, without information supporting that claim, such as, their identity and the roles they held with the respondent is insufficient, in my mind, to establish any facts that they can rely upon to raise an inference of discrimination.
5.13 Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of race, the complainants must be able to demonstrate evidence of sufficient significance to raise a presumption of discrimination and that must be established as facts on credible evidence. I am satisfied that they have not done this. I am also satisfied that the complainants have not adduced any evidence from which I could reasonably conclude that the termination of employment was in any way influenced by their race. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to dismissal on the grounds of their race.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.
- I find that the respondent did not discriminate against Mr. Vytautas Akucevicius, Mr. Ingus Brauska and Mr. Andris Baturo on the race ground pursuant to section 6(2)(h) of the Acts in respect of their conditions of employment contrary to section 8(1) of the Acts.
- I find that the respondent did not discriminate against Mr. Vytautas Akucevicius, Mr. Ingus Brauska and Mr. Andris Baturo on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
- Accordingly, I find in favour of the respondent in this matter.
______________
James Kelly
Equality Officer
2nd July, 2010