EQUALITY OFFICER'S DECISION NO: DEC-E/2010/119
PARTIES
PLONKINS AND ARBUZOVS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
TKI PROJECTS LTD. (IN LIQUIDATION)
File No: EE/2008/619 & 638
Date of issue :2 July, 2010
Headnotes: Employment Equality Acts, 1998- 2007 - sections 6 and 8 - race- discriminatory treatment - conditions of employment - hypothetical comparator - prima facie case
1. DISPUTE
This dispute involves claims by (i) Mr. Sergejs Plonkins and (ii) Mr. Vladislavs Arbuzovs, who are both Latvian nationals, that they were discriminated against by the respondent in respect of their conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts during their employment.
2. BACKGROUND
2.1 The complainants were employed by the respondent as a General Operatives from March, 2008 until May, 2008. They contend that during their period of employment the were treated less favourably as regards their conditions of employment on grounds of race (Latvian nationality) contrary to the Acts.
2.2 Mr. Plonkins referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 22 September, 2008. Mr. Arbuzovs referred his complaint under the same legislation to the Tribunal on 29 September, 2008. In accordance with her powers under the Acts the Director delegated the complaints 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 complaints commenced on 26 January, 2010 - the date they were delegated to me. By letter dated 6 January, 2010 the complainants' representative advised the Tribunal that the respondent had gone into liquidation and furnished details of the Liquidator appointed. Submissions were received on behalf of the complainants which were copied to the Liquidator on 12 February, 2010, by registered post, requesting a response. This letter also informed the Liquidator that the Hearing on the complaints was scheduled for 21 April, 2010 at the Tribunal's Office in Dublin. The Liquidator did not file a submission or make any other contact with the Tribunal prior to the Hearing. The respondent was neither present nor represented at the Hearing on 21 April, 2010. The Equality Officer was satisfied that the Liquidator had received the letter of 12 February, 2010 and proceeded with the Hearing as scheduled. The complainants also referred complaints of discriminatory dismissal to the Tribunal but these were withdrawn by their legal representative by letter dated 12 March, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 Both complainants, who are Latvian nationals, state that they commenced employment with the respondent as General Operatives on 20 March, 2008 and worked at a single location in Dublin until their employment terminated on 19 May, 2008. They state that they did not receive a written contract or terms of employment and contend that this constitutes unlawful discrimination of them on grounds of race contrary to the Acts. It is submitted on their behalf that following the Decision of this Tribunal in 58 Complainants v Goode Concrete 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 complainants stated that during their period of employment the respondent engaged two other employees as Security Operatives - one Lithuanian, one Latvian - there were no Irish employees. They were unable to say whether either any of these employees received a contract of employment.
3.2 The complainants state that the respondent failed to provide them with a health and safety statement/documentation or training in a language which they could understand. In the course of the Hearing neither complainant was able to say whether or not either of the other General Operatives employed at the same time as them received any health and safety training or documentation. It is submitted on the complainants' behalf that the respondent's actions constitute less favourable treatment of them on grounds of race, contrary to the Acts. They seek to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete in this regard.
3.3 The complainants state that they were not paid the appropriate rate of pay as set out by the Registered Employment Agreement (REA) for the Construction Industry. They add that they were paid €10 per hour - which was negotiated which the Foreman - and contend that the correct rate of pay was €14.88 per hour. They submit that this constitutes less favourable treatment of them contrary to the Employment Equality Acts, 1998 - 2007. In the course of the Hearing the complainants stated that they did not know if either of the other General Operatives received the REA rates of pay. They make similar assertions as regards the failure of the respondent to join them in a trade union or the Construction Workers Pension and Sick Pay Scheme - both of which are required by the REA - and were unable to say if either of the other General Operatives were treated differently. In the course of the Hearing Mr. Plonkins stated he was unaware of the REA. Mr. Arbuzovs confirmed that he was aware of it as he had worked as a General Operative/Banksman on other sites. It is submitted on their behalf that the failure of the respondent to apply the terms of the REA to them constitutes discrimination of them contrary to the Acts.
3.4 It is stated on the complainants behalf that all of the employees engaged by the respondent were Eastern European - three Latvians and one Lithuanian. It is submitted therefore that the Tribunal should examine how a hypothetical Irish employee would have been treated by the respondent in the circumstances. It is further submitted that the respondent would not have treated a hypothetical Irish employee in the same manner and consequently, the alleged treatment of the complainants constitutes discrimination of them on grounds of race contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
The respondent neither attended the Hearing nor was it represented at same.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent discriminated against the complainants on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts as regards their 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 complainants must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because they are Latvian.
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 Melbury Developments v Arturs Valpetters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person (see Glasgow City Council v Zafar [1998] 2 All ER 953) before the burden of proof shifts to the respondent. Section 6 of the Acts provides that discrimination can also arise in circumstances where one person would be treated less favourably than another person on one of the grounds - the concept of a hypothetical or notional comparator. In Toker Developments v Edgars Grods the Labour Court confirmed it "is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of a particular case. ... It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation.".
5.5 The complainant's solicitor submits that this Tribunal should consider the issues raised in the instant cases based on how a hypothetical Irish employee would have been treated by the respondent in the circumstances. As this Tribunal has stated on many previous occasions 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 within two months of the date of commencement of employment. I note that this period had only elapsed when the complainants' employment ceased with the respondent. Consequently, I am not satisfied that an Irish employee would have been treated differently in the circumstances. I have reached a similar conclusion as regards those aspects of the complaints connected to health and safety.
5.6 The complainants state that they were not paid the appropriate rate of pay, or other employment related entitlements, as set out by the REA for the Construction Industry and in essence assert that an Irish employee would not have been so treated as s/he would have been aware of their entitlements. I note that in the course of the Hearing Mr. Arbuzovs stated he was aware of the existence of the REA at the time he commenced employment. I am satisfied, on balance, that he would have spoken with Mr. Plonkins about this matter. It was therefore open to the complainants, in possession of this knowledge, to approach the respondent in the matter - but they did not do so. I have carefully considered the arguments advanced by the complainants' solicitor on this matter and I am not satisfied that they provide the evidential basis to enable me conclude that an Irish employee would have been treated more favourably in the circumstances. In light of my comments in this and the preceding paragraphs, I find that the complainants have failed to establish facts from which it could be inferred that a hypothetical Irish employee would have been treated differently than them in the circumstances and their complaints therefore fail.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of these complaints and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that the complainants have 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 - 2008 and contrary to section 8 of those Acts and their complaints cannot therefore succeed.
_______________________________________
Vivian Jackson
Equality Officer
2 July, 2010