THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 125
PARTIES
Mr. Vyacheslav Gorlatov and Mr. Juris Circens
(represented by Richard Grogan and Associates, Solicitors)
and
Caragh Landscaping Limited
File References: EE/2007/460 & EE/2007/558
Date of Issue: 9th July, 2010
File references: EE/2007/460 & EE/2007/558 - DEC-E2010-125
Keywords
Employment Equality Acts 1998-2008 - Section 6 and 8 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal
1. Dispute
1.1 These cases concern complaints by Mr. Vyacheslav Gorlatov, who is a Russian national, and Mr. Juris Circens, who is a Latvian national. They claim that they were discriminated against by Caragh Landscaping 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 training. They also claim that they were dismissed in a discriminatory manner.
2. Delegation of the complaint
2.1 Mr. Vyacheslav Gorlatov referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on the 3rd September, 2007. Mr. Juris Circens referred his complaint on 25th October, 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 21st July 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 both of the complainants on the 14th August 2008 and 15th September 2008 respectively. A written submission was received from the respondent on the 27th April 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to a joint hearing of these cases on the 28th April, 2010.
3. Summary of the Complainants' case
3.1 Mr. Vyacheslav Gorlatov was employed by the respondent as a labourer/landscaper from March, 2002 until 6th July, 2007. He stated that there were a number of other employees of various nationalities including of Irish origin employed by the respondent doing similar duties to him during his period of employment. He submitted that he did not receive a written contract of employment as provided by section 3 of the Terms of Employment (information) Act. He was not aware if any of the other employees working with the respondent received a written contract of employment. He also claims that he never received any Health and Safety training or documentation in his own language in the 5 years while working with the respondent. He was not aware if any of the other employees received Health and Safety training or documentation in their own language while they were working with the respondent.
3.2 He claims that he had a problem with his back and prior to his dismissal in July 2007, he went to a doctor and was advised to take some time off. He claims that he did not get a medical certificate from the doctor. He claims that he reported his absence to the respondent indirectly by asking some of his fellow workers that he lived with to relay the message on his behalf. He claims that when he returned to work a number of days later he was told that he was not needed anymore. He claims that he was unfairly treated and discriminatorily dismissed without any proper procedures applied because of his race.
3.3 Mr. Gorlatov claims that he never had any problems with the respondent up to the time of his dismissal. In response to a number of incidents raised by the respondent, which it claims amounted to "gross misconduct", Mr. Gorlatov denied any of these events ever occurring and said that there were no disciplinary issues while he was working there.
3.4 Mr. Juris Circens was employed by the respondent as a labourer/landscaper from July 2006 until 3rd August, 2007. He stated that there were a number of other employees of various nationalities including of Irish origin employed by the respondent doing similar duties to him during his period of employment. He submitted that he did not receive a written contract of employment as provided by section 3 of the Terms of Employment (information) Act. However, he was not aware if any of the other employees working with the respondent received a written contract of employment. He also claims that he never received any Health and Safety training or documentation in his own language in the time he was working with the respondent. He was not aware if any of the other employees received Health and Safety training or documentation in their own language while they were working with the respondent. He claims that he was paid less than the National Minimum wage and he was required to work excessive hours without proper breaks or rest periods.
3.5 Mr. Circens claims that he told his supervisor, Mr. A, that he intended to take three weeks summer holidays instead of two weeks like everyone else. He claims that he agreed to take the third week off at his own expense unpaid. He understood that this was acceptable and when he returned to work after the three weeks, he was told that he was dismissed for failing to return to work on time. However, later on in cross examination he claims that he thought that everyone was entitled to three weeks leave during the summer. He claims that the date of dismissal on his P45 was incorrect and was backdated to a date that he was on holidays. He claims that he was unfairly treated and discriminatorily dismissed without any proper procedures applied because of his race.
3.6 The complainant also referred to a number of cases in support of his case, including 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).
3.7 The legal representative for the complainants claimed that the complainants had each issued the respondent with a Form EE2 and a document entitled 'Notice for Particulars' requesting information from the respondents, and outlining the complainants intention of bringing a claim under a number of pieces of employment legislation including the Employment Equality Acts. The legal representative said as the respondent failed to reply to the complainants request for information, the Equality Tribunal should draw inferences from its unwillingness to disclose the information sought.
4. Summary of the Respondent's case
4.1 The respondent claims that it is a small landscaping company, which is in existence for approximately 19 years, operating principally in the greater Dublin area. It would normally employ approximately 6 people and seasonally that could rise to about 9 people. It claims that it has a history of a diverse workforce with Irish, Latvian, Lithuanian, Polish, English, Moldovan and Romanian employees working with it without any problems. It prides itself that most of its work comes from the reputation it has acquired for its professional approach to its work. It claims that its reputation is passed on by word of mouth and accordingly, it is very strict to ensure that employees are fully aware of what is expected of them.
4.2 The respondent does not dispute that both Mr. Gorlatov and Mr. Circens were employed with it, and are no longer working there. However, contrary to the evidence from the complainants, it claims that both were let go at different times due to separate acts of what it claims was "gross misconduct". The respondent claims that both complainants were treated fairly and in the same manner as all the other employees at the time including pay and conditions of employment. It claims that no employees, either Irish nationals or foreign nationals, received contracts of employment at that time. It claims that there was no employee Health and Safety documents available to any of its employees at the time. It claims there was no specific Health and Safety training for any of its employees, except where Mr. A, the supervisor on site, would give all employees demonstrations on site on the use of tools, machinery, etc, from time to time or as was required. It claims that all its employees would have held a Safe Pass certificate.
4.3 The respondent claims that Mr. Gorlatov has a history of not complying with its rules, and would fail to report for work from time to time. It specifically referred to two incidents where he broke company rules in relation to drinking alcohol while working on a job in Mayo and failing to return to work after the May bank holiday weekend in 2007. It claims that he was warned that his behaviour was not acceptable and that he would be dismissed if it continued. However, it claims that it persisted with him and gave him a chance. It maintains that in July 2007 he failed to show for work over a number of days, he did not make contact with the respondent and had his phone turned off so they were unable to get in contact with him. Mr. A, who appeared as a witness at the hearing, claims that at the end of that week Mr. Gorlatov appeared at his door demanding his P45 when Mr. A told him that he was dismissed. The respondent claims that the dismissal had nothing to do with his race.
4.4 The respondent claims that Mr. Circens was employed with the company for just over one year. It claims that all employees were informed by way of a memorandum of the annual summer holidays for that year, which was included with each persons pay packet in January 2007. It claims that the memorandum set out that summer holidays were to be taken when the respondent closed between 23rd July 2007 and 3rd August 2007 inclusive. It further maintains that the contents of this note were discussed with all employees and translated orally by a staff member to those with a poor command of the English language. It claims that on two separate occasions it was discussed with Mr. Circens with the aid of a work colleague to translate to a language Mr. Circens understood. The respondent maintains that was the normal procedure when a translation was required. It claims that Mr. Circens failed to return to work without any notice or warning. Accordingly, when he did return to the respondent's yard on the 20th August 2007 he was told he was dismissed. The respondent claims that the dismissal has nothing to do with his race.
4.5 The respondent did admit that the date of dismissal on Mr. Circens' P45 documentation was an administrative error that it was responsible for. It claims that Mr. A's wife helps out with some of the administrative work in the company and she had made the error. However, it claims that this error has nothing to do with Mr. Circens' race.
4.6 The respondent did present a copy of a Safety Statement which it claims was prepared for the company and used in relation to its legal obligation and requirement in negotiating landscaping contracts as a subcontractor (a C2 certificate). It claims that it was not a document that was for general circulation for its employees and for that reason, it was not circulated to its employees.
4.7 The respondent did present a current employee, Mr. B, as a witness to give evidence on its behalf. Mr. B is a foreign national working with the respondent since October 2006. He confirmed in cross examination that he had no recollection of receiving a contract of employment and was not aware of the existence of a Health and Safety statement or documents at the time of the complainants' employment. Mr. B claims that he remembers the memorandum outlining the holiday arrangements in January 2007. He also confirmed that if he was unsure of any instruction he would have it explained to him by his wife, who was employed by the respondent in its office as she had better English than he did.
4.8 The respondent in response to the complainants' request for the Tribunal to draw inferences from its failure to provide a response to the Form EE2 and appendix 'Notice of Particulars', said that it never received the appendix to the Form EE2. Notwithstanding that, it claims that the complainants' legal representative has produced this Notice of Particular document by its own accord and has attempted to introduce it by stealth as an official document of the Equality Tribunal, when it clearly is not. Accordingly, it claims for the foregoing reasons that I should not draw any inferences from its failure to reply.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case are whether or not the respondent discriminated against the complainants 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.
Discriminatory Treatment - Conditions of Employment
5.3 Firstly, I will consider the issue that has been raised by both 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 of Irish origin. However, they 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. This argument was also put forward in relation to the claim that Mr. Circens was paid less than the National minimum wage and that he was made work excessive hours without the appropriate rest periods.
5.4 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.
5.5 The next issue raised by the complainants relates to the respondent's failure to provide them with Health and Safety training and documentation. I note that the respondent claims that all training was usually given on site in the form of a demonstration by the supervisor where employees with linguistic skills were called upon to help provide translations to anyone requiring assistance. It would appear that this method of demonstration was run in an ad hoc informal basis for all the employees - foreign national and Irish national alike. I am satisfied that everyone was treated the same with regard to this aspect of training. As to the Health and Safety documentation, I am satisfied that the complainants, and also Mr. B, testify that they were unaware of the existence of any such documentation of such a nature at the time of the complainants' employment with the respondent. I am also satisfied that the respondent at the time had asked a specialist to provide it with a safety statement. I note the respondent's evidence that this document was used to assist it to meet its obligations in securing work and that it was not a document for circulation to staff generally. The legal representative for the complainants stated that it would be unbelievable that the respondent would employ a professional to prepare a safety statement and not insist that it forms part of the training for all the staff. Whereas, the respondent claims that the document was prepared solely to meet the requirements to quality for a C2 certificate. Having considered all the evidence I am satisfied that this arrangement is not unbelievable in the circumstances and is more likely a credible account of the actual situation that existed at the time.
5.6 Again, I refer to the Labour Court's decision in Melbury, 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 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".
I am 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 relation to their conditions of employment. Accordingly, in the circumstances I find that the complainants have failed to establish facts from which it could be inferred that they were treated less favourably on the grounds of race as regards this element of their complaints.
Discriminatory Dismissal
5.7 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 different dates, without the application of any proper procedures.
5.8 It was not disputed that the complainants were summarily dismissed from their employment following an absence from work. Therefore, in order to decide whether the complainants were subjected to a discriminatory dismissal on the grounds of their race, I must consider whether the respondent would also have dismissed one of its other employees, including one of its Irish employees, in circumstances similar to the incidents which are the subject of the present case. The respondent has claimed that the complainants were guilty of "gross misconduct" in terms of their failure to report to work on respective dates and that it therefore decided to terminate their employment because of this. The respondent maintained that everyone was aware of where they stood with its rules, that work was generated by word of mouth and in Mr. Gorlatov's situation he was in breach of its rules, was verbally warned and when it occurred again, he was dismissed. It also maintains that Mr. Circens was informed on a number of occasions of the holiday arrangements for 2007 and still reported back to work a week late and as a consequence he was dismissed. I note that the respondent still employed a number of foreign nationals, of which Mr. B claims that he is with it for a number of years. Having regard to the evidence adduced, I find the respondent's evidence to be more compelling in this instance. Therefore, I am satisfied that the respondent's decisions to dismiss the complainants was not in any way connected to their race and that it would have taken the same decisions to dismiss one of its other workers irrespective of race, should the same incidents have occurred.
5.9 The complainants raised issues regarding the failure of the respondent to invoke a grievance or disciplinary procedure in relation to their dismissals and have also argued that the respondent failed to adhere to fair procedures in terms of the manner in which it effected the dismissals. Although the complainants have argued that proper procedures were not complied with in relation to both dismissals, the issue for decision is whether or not the complainants were discriminated against on the grounds of race in relation to their respective dismissals. I have no jurisdiction to decide on the unfairness or otherwise of the dismissals; the complainants need to prove that the dismissals were connected to their race. I accept the respondent's contention that it did not have any grievance or disciplinary procedures in place at the time and I am therefore satisfied that any employee who was being dismissed by the respondent in similar circumstances to the complainants at the time would not have been afforded access to such procedures. Accordingly, I am satisfied that the manner in which the complainant's dismissal was effected was in no way connected to their race. Having regard to all the evidence, I am satisfied that the complainants have failed to establish a prima facie case in relation to their dismissal on the grounds of race.
Failure to supply information
5.10 I am not at all satisfied with the respondents noticeable apathy in furnishing the Tribunal with its submissions in relation to the case, but I noted its apology on the day of the hearing and its willingness to fully cooperate with the Tribunal. I am satisfied that I was not precluded from completing my investigation to a satisfactory conclusion.
5.11 I note the complainants' request for the Equality Tribunal to draw inferences from the respondent's failure to supply information which the complainants had sought by way of questions undercover of the Form EE2. I note the respondent claims that it did not receive the document outlining the request. I also note that the parties are quite familiar with each other from various other employments rights fora, and that there has been an exchange between the parties of much of the documentation the complainants had sought whilst pursuing cases under other employment legislation. I am not convinced that the failure of the respondent to reply to the complainants has prevented them in presenting their case in the most effective manner. At least, no evidence was adduced to point to where this was the case. Accordingly, I am not going to draw any inferences from the respondent's failure to respond to the request for information under section 76 of the Acts.
6. Decision
6.1 Having investigated the above complaints, 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. Vyacheslav Gorlatov and Mr. Juris Circens 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. Vyacheslav Gorlatov and Mr. Juris Circens 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
9th July, 2010