EQUALITY OFFICER'S DECISION NO: DEC-E/2010/132
PARTIES
JEFIMOVS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
BRENDAN MORAN T/A CLONTARF AUTO
File No: EE/2008/17
Date of issue : 16 July, 2010
Headnotes: Employment Equality Acts, 1998- 2007 - sections 6 & 77 - race- discriminatory treatment - conditions of employment - dismissal - prima facie case
1. DISPUTE
This dispute involves a claim by Mr. Vadims Jefimovs, who is a Latvian 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 - 2007 and contrary to section 8 of those Acts and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent from January, 2007 until October, 2007. He contends that during his period of employment he was treated less favourably as regards his conditions of employment on grounds of race (Latvian nationality). He further contends that he was dismissed by the respondent in circumstances amounting to discrimination on the same basis (Latvian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 19 December, 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 19 March, 2010, the date it was delegated to me. Submissions were received on behalf of both parties and a Hearing on the complaint took place on 24 June, 2010. On the basis of the submission filed on behalf of the respondent it appeared to be in dispute whether or not the complainant was an employee for the purposes of the Acts. However, this matter was resolved at the outset of the Hearing and the respondent accepted that the complainant was an employee during the period indicated at paragraph 2.1 above.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Latvian national, states that he was employed by the respondent between January, 2007 and October, 2007. He adds that during this time he performed mechanical repairs to cars, valeting of cars and other general duties such as the transportation of cars from one location to another for the respondent. He 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 submits 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 complainant stated that during his period of employment the respondent engaged 5 other employees - all of whom were Irish. He adds that two of these were involved with car sales, two were involved with valeting/cleaning cars and the last worked in the Office. He was unable to say whether or not any of these employees received a contract of employment or other documentation. The complainant further states that the respondent failed to provide him with a health and safety statement/ documentation or training. Finally, he states that he received no payslips or tax documentation (P45) at the end of his employment. It is submitted on the complainant's behalf that the respondent's actions constitute 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 in this regard. In the course of the Hearing the complainant was unable to say if any of the other employees received health and safety documentation/training or payslips.
3.2 The complainant states that he went on holidays in October, 2007 to return to Latvia. He adds that on 21 October, 2007 he received a text from the respondent stating that he was no longer needed in the garage because there was not enough work and "business is slow". The complainant states that he went to see the respondent the next day. He adds that he indicated to the respondent there were other employees who had started work for the respondent after him and one of them should be let go before him. He adds that he also asked if the respondent would "give him a chance to work until after Christmas" as he (the complainant) had no other work arranged. The complainant states that the respondent replied that "it was a family business" and refused to discuss the matter any further. It is submitted on behalf of the complainant that this constitutes discriminatory dismissal of him contrary to the Acts. In this regard the complainant's solicitor drew the Equality Officer's attention to the differences in the reasons for the dismissal advanced by the respondent at the Hearing and those set out in a letter from the respondent to the complainant's solicitor dated 22 February, 2008 - which was in response to the complainant's EE2 Form - a request for certain information under section 76 of the Acts. The complainant's solicitor requests the Equality Officer to draw appropriate inferences from the respondent's behaviour in this regard in accordance with section 81 of the Acts. Finally, it was submitted on behalf of the complainant that as two of the employees engaged by the respondent at the relevant time were his sons, they could not be used as comparators for the purposes of the Acts and the Tribunal should therefore examine the complaint having regard to the concept of a notional Irish comparator.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It states that it commenced business in September, 2006 as part of a return to work initiative and that the owner (Mr. Moran) - who had never run a business before - was completely un-informed in the formalities involved with same. Consequently, it did not issue any of its employees with contracts of employment (or other documentation setting out terms of employment) or provide them with any health and safety training/documentation or payslips. The respondent accepts that the complainant's description of the tasks he performed (at paragraph 3.1 above) accurately reflects the work performed by him during his employment. The respondent rejects that it had five other employees at the relevant time as asserted by the complainant - instead it states that only two people could be regarded as employees. Mr. Moran states that he was an employee and that one of his sons was involved with Sales and was therefore an employee also. His younger son was only 17 years old at the time and was involved with the cleaning of cars after school and during school holidays and was not an employee. Another person, Mr. X, was in his mid-70's and was only there occasionally - doing odd jobs such as delivering documents to other garages and registration offices and could not be considered an employee. The final person (Mr. D) conducted his own (separate) business from the premises and provided the respondent with contacts for the importation and purchase of cars as well as selling the respondent some cars direct. In the course of the Hearing Mr. D gave evidence (independently of Mr. Moran) which corroborated the respondent's version of the commercial relationship between them.
4.2 The respondent accepts that all of the aforementioned persons are Irish and submits that two of them are valid comparators for the purposes of the complaint. It states that these employees were treated no differently to the complainant as regards this aspect of his complaint and submits therefore that it did not discriminate against him on grounds of race. It adds that the same arguments apply even if the Equality Officer decides that some, or all, of the remaining persons named by the complainant are employees for the purposes of the complaint. The respondent submits that the Equality Officer cannot ignore the fact that actual comparators exist but submits, should the Equality Officer not accept that proposition, that the instant case is comparable to that in Gorys v Igor Kurakin Transport Ltd as regards a start-up position and it seeks to rely on same.
4.3 The respondent accepts that it sent the text on 21 October, 2007 referred to by the complainant. It states that the complainant had left it "high and dry" by taking his holidays when he did and that this had followed a number of work related issues which had occurred over time. The respondent states that in the months prior to October the complainant had (i) not properly tightened the wheel on a car he had been working on- which could have resulted in a serious accident- and ultimately lost the respondent a body of work from the owner of the car which he previously enjoyed, (ii) did not complete a job on the brakes of another car which resulted in failure of the brakes and significant damage to two cars in a garage for which the respondent was liable, (iii) was in a car which was involved in a road traffic accident (where the driver was drunk) and was in possession of the respondent's "trade plates" which were retained by the Gardaí and (iv) used the respondent's premises for private use without permission. Mr. Moran states that it was the accumulation of these matters that prompted him to send the text message. He adds that when the complainant ceased employment he did not engage anyone to replace him and the respondent has not carried out mechanical repairs since then. The respondent accepts that he dismissed the complainant but submits that the termination of his employment was not connected in any way with his nationality.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are 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 - 2007 and contrary to section 8 of those Acts as regards his conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 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 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 complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is 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 a recent Determination the Labour Court , 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 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.".
5.5 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. It also affirmed the Equality Officer's approach that it was not sufficient to ignore the existence of actual comparators and apply the concept of a notional Irish comparator in evaluating whether or not discrimination had occurred - whilst acknowledging that circumstances might exist where such an approach might be appropriate. In the instant case I am satisfied that (i) there were four Irish employees engaged by the respondent at the relevant time - two of whom were his sons and (ii) Mr. D was not an employee of the respondent. It is not relevant whether the people involved were full-time, part-time or casual and I am satisfied that a comparison with those employees is the appropriate approach in this case. It was argued on the complainant's behalf that the Acts excluded the respondent's children as comparators for the purposes of assessing whether or not less favourable treatment had taken place. The complainant's representative is incorrect in this assertion. Whilst there are a number of exemptions in the Acts in relation to the family status ground there is no exclusion of family members for the purposes of comparison when examining if less favourable treatment has occurred. Mr. Madden gave uncontroverted evidence that he gave none of his employees contracts of employment (or a statement of conditions of employment), health and safety documentation/training or payslips and I accept this. It follows therefore that the complainant was treated in a similar manner to employees of a different nationality - Irish - and no less favourable treatment of him occurred. Any failure on the respondent's part to comply with entitlements and obligations under other employment rights legislation has a remedy in the relevant enforcement provisions of those statutes. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination in respect of this element of his complaint.
5.6 The respondent accepts that he dismissed the complainant and that he did so by way of text message - the contents of which was opened to the Equality Officer. This text indicated that his (the complainant's) employment was terminated because of a reduction in work. In the course of the Hearing the respondent stated -whilst accepting that the complainant was entitled to take holidays - that by taking them at that particular time he (the complainant) had left Mr. Moran with problems and he was annoyed with him. Mr. Moran also stated that there had been previous performance related issues concerning the complainant and in addition, he had been involved in a car crash when he was in possession of the respondent's trade plates - which were retained by the Gardaí for a period. The complainant's solicitor contended that the respondent omitted certain information in its letter of 22 February, 2008 -which was its response to the complainant's EE2 Form - in respect of the dismissal and requested the Equality Officer to draw appropriate inferences in accordance with section 81 of the Acts. I have read the letter in question and I am satisfied, notwithstanding that it does not go into the same level of detail as Mr. Moran did at the Hearing about the reasons for the dismissal, that it does encompass the reasons advanced by the respondent at the Hearing and I am not prepared to draw any adverse inference as argued on behalf of the complainant. Whilst I am of the view that there were procedural defects in the manner in which the respondent dismissed the complainant, the issue before this Tribunal is one of discriminatory dismissal and not one of unfair dismissal. The Labour Court in its Decision Muleadys Ltd v Aidotas Gedrimas commented that that arbitrary dismissal of employees by an employer in not confined to non-Irish workers and I would concur with that view. I have carefully considered the evidence advanced by the parties on this point and I find, on balance, that the complainant has adduced insufficient evidence to support his assertion that his nationality was a factor which influenced the respondent's decision to dismiss him and this element of his complaint therefore fails.
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 that the complainant -
(i) 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 - 2007 and contrary to section 8 of those Acts in respect of his conditions of employment and
(ii) has failed to establish a prima facie case of discriminatory dismissal on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998- 2007 and contrary to section 77 of those Acts
and his complaint cannot therefore succeed.
_______________________________________
Vivian Jackson
Equality Officer
16 July, 2010