Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-136
PARTIES
Gintas
(Represented by Richard Grogan and Associates)
- V -
Bridford Properties Ltd
(Represented by Ms Mary Gordon BL on the instructions of Noel Smyth and Partners Solicitors)
File references: EE/2007/430
Date of issue: 16 July 2010
Keywords
Employment equality Acts 1998-2008 - Discriminatory Treatment - Harassment- Race - Condition of employment - Training - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Smilgys Gintas (hereafter "the complainant") that he was subjected to discriminatory treatment and harassment contrary to the Employment Equality Acts by Bridford Properties Ltd. (hereafter "the respondent") on the grounds of his race. The complainant maintains that the respondent discriminated against him in relation to his conditions of work and that another employee used foul language against him creating an intimidating environment contrary to the Acts.
1.2. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 27 August 2007 under the Employment Equality Acts. This claim was made on the race ground. On 30 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 31 May 2010. Documentary evidence in relation to a comparator pay situation was received on 11 June 2010.
2. Case for the complainant
2.1. The complainant, a Lithuanian national, worked with the respondent from early 2005 to June 2007 when he was dismissed. It was submitted that the complainant did not receive a contract of employment, health and safety training or documentation, no P45 or P60. Also, the complainant contends that the manner in which he was worked was such that no notional Irish comparator would have worked in a similar way.
2.2. It was submitted that the complainant could not take water with him when he was out working. It was submitted that he was given no water except at one break. Furthermore the complainant stated that he could not go to the toilet. It was submitted that if the complainant did go to get a drink he would be shouted at by a named supervisor. He was told that he 'was paid money to work and that he should therefore work'. The complainant submitted that he was regularly called a "fucking white nigger".
2.3. The complainant was told that he was not to show his pay slip to anybody and that if he did he would be sacked.
2.4. The complainant submitted that foul language was used. He stated that he was called 'a stupid idiot'. Comments such as 'fuck your mother' and 'fuck your family' were regularly directed at the complainant. This, the complainant contends, created an oppressive environment. No grievance procedures were in place. It was submitted that a foreign worker in such a situation is in a particularly vulnerable position.
3. Case for the respondent
3.1. It was submitted that the golf course where the complainant worked consisted of 700 acres and in this regard there was a large degree of self regulation in respect of taking breaks including water and toilet breaks. It was submitted that during the complainant's period of employment no clocking system was in place and a green keeper's hut was available for breaks.
3.2. It was submitted that the complainant never made a complaint about abusive language to the respondent. The complainant returned to the respondent's employment after voluntarily leaving and taking alternative employment elsewhere. It was submitted that the complainant worked with the respondent between 5 March 2005 and May 2006 and again from September 2006 to June 2007.
3.3. The respondent submitted that it refutes any incident of discrimination in the manner as set out by the complainant. The respondent argues that no evidence of a comparator has been put forward.
3.4. It was submitted that the complainant engaged in all types of work ascribed to green-keepers. This applied to all green-keepers regardless of nationality. The only exception was the spreading of chemicals. While the complainant assisted with this, he did not have the required certificate to spread the chemicals. It was submitted that it was the complainant himself who characterised the work as "black". It was submitted that all employees would have carried out manual work and that the complainant also worked with machinery.
3.5. It was submitted that the complainant, who at the hearing declared himself to have extremely limited English, was able to take instructions and communicate in English during his employment with the respondent and that he was able to participate with the Rights Commissioner service and the Labour Court without an interpreter.
3.6. It was submitted that the complainant never told the respondent about his new address. Furthermore it was submitted that the respondent had a staff handbook which includes a diversity policy.
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 the conditions of employment. No comparator was presented for the purposes of the Acts. While this Tribunal accepts the importance of all employers complying with their duties in relation to all of their employees' employment rights, it cannot be accepted, without evidence to support such a claim, that a foreign worker is in a particularly vulnerable position and thus that positive action is required. I note that these matters have been dealt with by the relevant bodies. The complainant has shown no evidence to link such treatment with his nationality. I note that the complainant submitted that he and other employees were forbidden to show their pay slips to others. As this prohibition is something the complainant submitted was imposed on everyone, no evidence of less favourable treatment can be adduced.
4.3. In relation to the argument about toilet breaks and access to water. The complainant worked on a golf course. No evidence was presented to suggest that he was treated any differently from other workers with different nationality. No evidence of less favourable treatment can be adduced.
4.4. The complainant clearly preferred some aspects of the work to others and submitted that some of the work he was asked to do was "black" work. I take this to mean that the complainant believed the value of some aspects of his work to be more suitable for persons whom he considers to be of lesser value. This Tribunal is not interested in the complainant's opinions in such matters. I have been presented with no evidence to support an argument that an Irish comparator doing the same level work as the complainant would not have been asked to carry out the same tasks.
4.5. In relation to the claim of harassment. I note that the complainant submitted that another servant of the respondent used inappropriate language when addressing the complainant. It was submitted by the complainant that the respondent ought to have brought that person to the hearing. The respondent submitted that the person was on temporary lay-off and that it was inappropriate for the respondent to request that he attend in such circumstances. I find that the onus to establish a case rests with the complainant. This is well established law. It is not sufficient to appear before this Tribunal to make mere assertions and expect that on the face of such assertions the burden to rebut shifts to the respondent. I am satisfied that the complainant could have brought his own witness to the hearing or, provided that the Tribunal is satisfied such action is relevant, the Tribunal could have been requested to compel a person to give evidence. The complainant did neither. Nevertheless, his evidence referred to language that - while not appropriate - in the main cannot be linked with complainant's nationality without further evidence. I note that the complainant elaborated his claim at the hearing to include the reference of "white nigger". This was not in his written submission which referred to abusive language such as "fuck your mother". I find that the complainant's evidence in relation to the racially abusive language not to be compelling. The complainant himself had a tendency to make racially loaded comments at the hearing. The complainant submitted that what he described as 'easy work' and 'serious work' was always given to Irish/British persons This means that the complainant was ascribing his own value system to various aspects of the work of a green-keeper. No evidence was presented that the work the complainant was asked to do was not that of green-keeper or that he only worked some aspects of it (I accept the exception of the chemicals). I find the respondent's submission about how tasks were allocated more compelling and consistent. Furthermore, I note that the complainant could not reply to the question why he would voluntarily return to such an employer if the conditions were as bad as he submitted. I also note that while the complainant denied receiving a gratuity from the respondent for introducing three of his compatriots to the respondent, he did not deny recommending the respondent as an employer to his fellow citizens.
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. I find that the complainant has been unable to establish a prima facie case of
discrimination. Therefore this claim fails.
5.3. I find that the complainant has been unable to establish a prima facie case of
harassment within the meaning of the Acts. Therefore, this claim fails.
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Tara Coogan
Equality Officer
16 July 2010