THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010-139
Janis Barbalis
(represented by Grogan and Associates Solicitors)
versus
Brendan Woods Construction Ltd.
File reference: EE/2007/673
Date of issue: 19th July 2010
Keywords: Employment Equality Acts, Race, Discriminatory dismissal, Harassment
Dispute
1.1. The case concerns a claim by Mr Janis Barbalis, a Latvian National, against Brendan Wood Construction Ltd. On his complaint form he claimed that he was discriminated against regarding conditions of employment and training and that he was discriminatorily dismissed on the grounds of race contrary to 6(2)(h) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts']. He also claims racial harassment. At the hearing, the complaints regarding conditions of employment and training were withdrawn.
1.2. Through his legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 17th December 2007. On 25th March 2010, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both sides. A Hearing was held on 1st July 2010 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 The complainant was employed from October 2006 until December 2007.
2.2 Mr Barbalis maintains that he never received health and safety training or documentation. He submits that he did not receive a contract of employment either. In relation to this, the complainant cites 58 complainants v Goode Concrete .
2.3 Mr Barbalis maintains that the owner of the company never saluted him but did salute some of the Irish workers. The complainant submits that while the foreman was not rude to Eastern European workers, he was nicer to the Irish people working there.
2.4 The complainant submits that he obtained the FÁS accreditation to drive construction machinery in his own time. He did not receive any extra remuneration for doing this. However, the complainant maintains that the FÁS accreditation did not entitle him to drive a teleporter on a public road as he did not have an Irish driving licence. He was asked by the foreman on his site to drive the teleporter across a road to an other site. Mr Barbalis refused. The foreman became agitated and started shouting at him. Mr Barbalis left the site and never returned to work. He is claiming constructive dismissal
2.5 Other cases cited were Khumalo v Cleary and Doyle , Campbell Catering Ltd and Aderonke Rasaq , Zhang v Towner Trading , Golovan v Porturlin Shellfish Ltd
Summary of the respondent's case
3.1 The respondent denies the complainant was treated less favourably than their other employees were. No employee had a written contract of employment or their terms and conditions of employment in writing at that time. Site Safety Manuals as well as Health and Safety Statements were available to all employees in English. The respondent submits Mr Barbalis is a fluent speaker of English and had the same access to information as Irish nationals. The respondent submits that an Irish person living in France would not be entitled to their contract of employment in English or Irish. Brendan Woods Construction Ltd maintains the respondent did not dismiss complainant but that he left voluntarily.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is race. Therefore, the issues for me to decide are:
(i) Was the complainant harassed in terms of Section 14A(7) ?
(ii) Was he discriminatorily dismissed by the respondent on the ground of race contrary to Section 8(6)(c) of the Act?
4.2 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 Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided 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. While those facts will vary from case to 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 establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
Harassment
4.3 Section 14 (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.4 I am not satisfied sufficient evidence has been adduced that the complainant was harassed on the ground of race. Therefore, this strand of his case cannot succeed.
Discriminatory Dismissal
4.5 The definition of 'dismissal' in the Act incorporates constructive dismissal:
"Dismissal" includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee would have been entitled to terminate the contract without giving such notice, or it would have been reasonable for the employee to do so, and "dismissed" shall be construed accordingly.
I do not find that the conduct of the respondent was so discriminatory on the ground of race that the complainant can reasonably regard himself as dismissed. I am satisfied that if an Irish worker refused to perform duties (notwithstanding the health and safety issues over which I have no jurisdiction to decide) he would not have been treated more favourably.
Decision
I have concluded my investigation of Janis Barbalis's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the complainant was not harassed on the ground of race contrary to Section 14A of the Act
(ii) that the complainant was not discriminatorily dismissed on the grounds of race contrary to 8 (6)(c) of the Act.
________________
Orlaith Mannion
Equality Officer
19th July 2010