Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-134
PARTIES
Gobins and Salenieks
(Represented by Richard Grogan and Associates)
- V -
World of Concrete
(Company Struck Off)
File references: EE/2006/433
Date of issue: July 2010
Keywords
Employment equality Acts 1998-2008 - Discriminatory Treatment - Race - Condition of employment - Prima facie case
1. Dispute
1.1. The dispute concerns claims by Mr. Madars Gobins and Mr. Ainars Salenieks (hereafter "the complainants") that they were subjected to discriminatory treatment contrary to the Employment Equality Acts by World of Concrete (hereafter "the respondent") on the grounds of their race. The complainants maintain that the respondent discriminated against them in relation to their condition of work.
1.2. The complainants referred their claims of discrimination to the Director of the Equality Tribunal on 27 October 2006 and 23 October 2006 respectively under the Employment Equality Acts. This claim was made on the race ground. On 27 November 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated these cases to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 3 June 2010. The respondent company has been struck off from the companies registration office on 30/05/2010. The respondent was notified at its registered address.
2. Case for the complainants
2.1. The complainants, Latvian nationals, submitted that they worked with the respondent company in 2006. The worked as construction workers and claim that on their return from their annual leave they were summarily dismissed. The complainants submitted that during the course of their employment the respondent violated almost every employment right that they had.
2.2. It was submitted that the respondent only employed Irish foremen and that all the labourers were Latvian or Lithuanian. It was submitted that this was because the respondent wanted to avail of cheaper labour.
2.3. The complainants submitted that they were treated less favourably in that:
1. No contracts of employment were furnished
2. No health and safety documentation was furnished
3. There was a significant underpayment of wages
4. Tax and social security were not paid
5. The company vehemently denied that the complainants were employed by it
6. The complainants were not furnished with pay slips
7. The complainants were effectively dismissed when they returned from their holidays
8. The complainants were not joined in the CWPS Pension and Sick Pay scheme
9. The complainants social welfare position has been prejudiced by the fact that the respondent company was involved in a serious tax evasion and social welfare fraud
10. The respondent company made an attempt to show pay slips before a Rights Commissioner hearing purporting that tax and social welfare had been paid.
2.4. The complainants wish to distinguish Melbury v. Valpeters (EDA/0917) by stating that in this present case the respondent denied the very fact that the complainants worked for them and after being caught out by the complainants, the respondent backtracked and submitted pay slips which the complainants claim are incorrect. The complainants submitted that such treatment would not have taken place in relation to an Irish person and that the respondent believed that the complainants were so completely off the radar that their rights could be denied completely.
2.5. The complainants submitted Khumalo v Cleary and Doyle Ltd (DEC-E2008-003), Campbell Catering Limited v Aderonke Rasaq (EED048), Zhang v Towner Trading (DEC-E2008-001), 58 Named Complainants v Goode Concrete Ltd (DEC-E2008-020), Golavan v Portulin Shell Fish Ltd (DEC-E2008-032) as authorities in support of their claim.
3. Case for the respondent
3.1. The respondent did not attend the hearing. I have taken note of the written correspondence the respondent sent to the complainants' representative. It is clear that the respondent denied having any knowledge of the complainants. An example of such reply to the complainant's solicitor taken from a letter dated 18 January 2007 stated: "We are in receipt of various letters during the recent past. With impatient courtesy we have replied. We stated clearly and precisely, employing the queens english [sic], that we are unaware of the existence of persons named by you as having been employed by our company."
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
4.2. In relation to employment claims that have been dealt with by bodies of different jurisdiction. This Tribunal has jurisdiction to investigate such matters only when there are facts supporting a nexus between such treatment and the protected ground. I note that the complainants have been awarded compensation for the breaches of Payment of Wages Act, Employment (Information) Act and the Organisation of Working Time Act. I am satisfied that these aspects of the complainants claim have been dealt with and no additional facts were presented to this Tribunal to support an argument that such breaches were linked with the complainants nationality. I note that the claim in relation to Health and Safety Act was withdrawn at the Rights Commissioner hearing. While the claim was pursued at the Tribunal no evidence of less favourable treatment was shown. While I note that the complainants referred to past authorities where grounds for positive action in relation to the need to produce health and safety documentation in the language of the worker, I was presented with no facts to support a legitimate argument for such action.
4.3. The complainants submitted that named accountants produced documentation on the basis of purported calculations stating that the respondent paid tax and PRSI even when the respondent had not. The complainants did not show any evidence to support their claim that tax and social security was not paid by the respondent. Furthermore, no evidence to link such alleged conduct with the complainants' nationality was shown.
4.4. This Tribunal has no jurisdiction to investigate alleged social welfare and revenue fraud. The complainant showed no evidence of any actual less favourable treatment in relation to the complainants' social welfare and tax position. Therefore, it is not possible to assess whether there was or could have been a nexus between the treatment and the complainants' national origin.
4.5. It is not clear what comparator situation can emerge from the complainants' submission that they were less favourably treated by the respondent when the company made an attempt to show pay slips before a Rights Commissioner hearing purporting that tax and social welfare had been paid. While I appreciate that this may be evidence of dishonesty and an attempt to conceal facts, I have not been presented with facts to support an argument that the company would not have behaved the same way with Irish nationals.
4.6. The complainants submitted that they ought to have been joined into the Construction Workers Pension and Sick Pay scheme. It was submitted that an Irish national comparator would be aware of their employment law rights as regards pension and sick pay contributions. It was submitted that an Irish worker would insist that such payments were made. I have been presented with no evidence to accept such an assertion as a relevant fact to this investigation.
4.7. I note that the complainants wish to distinguish Melbury by submitting that a respondent would not try to deny the existence of an employee-employer relationship in a case where the employee is Irish. The suggestion is that such assertion ought to be enough to disperse with the complainants evidential burden that is clearly set out in statute and in existing case law. Such an approach is simply incorrect in law. I note that the complainants' representative submitted that he had rarely come across an employer who would attempt to deny to such extent the fact that complainants were employed by it. I also note that the complainants representative suggested that the reason for this denial was the fact that the respondent knew that tax and social welfare had never been paid and that the company would be in serious difficulties if these matters were revealed. While this is plausible, there is nothing to suggest that this Tribunal ought to accept, without some facts supporting such an assertion, that an Irish person in similar circumstances would not be so treated. The complainants' solicitor was able to produce a letter from the company stating that the first named complainant and another named person who had also lodged a complaint with this Tribunal - but failed to attend the hearing - were indeed employees of the company. These letters were dated 16 March 2006, citing the person's PPS number and signed by a recognised company employee. I note the respondent adjusted their position at the Rights Commissioner hearing and acknowledged that the complainants were in fact their employees.
4.8. I note that the complainants submitted that they were effectively dismissed when they returned from their holidays. The complainants stated that they were simply not paid. I note that the complainants do not refer to discriminatory dismissal on their complaint form and no facts supporting dismissal were set out in their written submission. In such circumstances, I cannot investigate whether the complainants were discriminatorily dismissed. Their claims appear to be linked with conditions of employment and I have been presented with no facts to suggest that the complainants were treated any less favourably than any other employee of the respondent and that such treatment was linked with the complainants' nationality.
4.9. The complainant relied on a number of decisions but failed to make any arguments linking them to the facts of the present case. Rashaq v Campbell Catering and 58 named complainants v. Goode, for example, set out a case for a legitimate need for positive action in relation to an employee in certain circumstances. No such facts have been presented in this case.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. The complainants have failed to establish a prima facie case of discrimination on the race ground. Therefore, their complainants fail.
_______________
Tara Coogan
Equality Officer
16 July 2010