Decision DEC - E2010-145
Tatjana Narovska
(Represented by Richard Grogan & Associates, Solicitors)
-v-
Fergus Douglas t/a Dargle Cleaning Services
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment , gender - 6(2)(a), Section 6(2)(h) - Race, Section 8- conditions and discriminatory constructive dismissal, prima facie case.
1. Dispute
1.1 This dispute concerns a claim by a complainant that she was discriminated against by the above named respondent on the gender and race grounds, in terms of Sections 6(1), 6(2)(a) and6(2) (h) of the Employment Equality Acts 1998-2008 and contrary to section 8. She also alleged that her dismissal was discriminatory.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 6th May 2008 alleging that the respondent discriminated against her contrary to the Acts. In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 13th May, 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 3rd October 2008 and from the respondent on the 20th November 2008 and the 27th July 2010 . As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 27th July , 2010
3. Summary of the Complainant's Case
3.1 The complainant is a Latvian national and was employed as a cleaner by the respondent from the 1st October 2007 until her employment terminated on the 15th February 2008. The complainant's case is that the respondent failed to provide her with a contract of employment, a health and safety statement, and a pay slip as required by law. It is also contended that the failure to provide such documentation to the complainant is a breach of the equality legislation. She submits that she was required to work overtime and was always paid in cash and when she requested a contract of employment on the 8th of February 2008 she was told by that she was too smart and that he was going to give her P45.
3.2 She was working in Bray up until February 2008 doing a morning shift from 4am to 7am and an evening shift from 5pm to 9pm. She was transferred to work in an office in town for the morning shift. She submitted that the respondent changed her hours on the morning shift from 4am - 7am to 7am to 10am. As a result it would cost her more in parking fees and the traffic was much heavier. One day she called in sick and she was threatened. She said she received text messages from the respondent changing her hours of work. She submits that the actions of the respondent forced her out of the employment.
3.2 The Complainant's representative submitted that the complainant was discriminated against because there was an obligation on an employer to provide a contract of employment and a health and safety statement in a language likely to be understood by the complainant. By not receiving such documentation foreign national employees are placed in a particularly vulnerable position compared with Irish employees. The complainant's legal representative, in her legal submission, referred me to a number of cases in support of her case, including Campbell Catering Ltd. -v- Rasaq (EED048), 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).
4. Summary of the Respondent's case
4.1 The respondent denies that the complainant was discriminated against in relation to her conditions of employment or that she was constructively dismissed. At the outset he said that the complainant was a good worker and he would have her back at work if she wished to return. The respondent accepts that the complainant was not provided with a contract of employment or health and safety documentation. He submits that both of these matters are for another forum and that the Right's Commissioner issued a recommendation which he fully implemented. The respondent does not accept that the complainant was not provided with her P60 for the year ending 31st December 2007. He said that the complainant was forwarded her P60 together with her final wage packet on the 2nd of July 2008. The respondent stated that he never advised the complainant that her hours of work would be reduced or that her hours of work would be changed. The respondent submitted that the complainant refused to work with certain nationalities and in certain locations. Even though on occasions she refused to work to the full number of hours she was roistered, the respondent paid her in full.
4.2 In February 2008 the respondent got a new cleaning contract in a Dublin city centre office and the complainant agreed to transfer from working the morning shift in Bray to a morning shift in Dublin city centre. The officials in the new contract requested that the morning shift hours be changed to 7am to 10am for security reasons. He had a discussion with the complainant and she refused to do the new hours. The complainant did not attend work after this. He stated that he texted her to find out where she was and received no reply and she did not return to work. He submitted that the complainant walked out without giving notice and he was supported in this contention by the Rights Commissioner who made a finding that the complainant was not entitled to notice because she walked off the job.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the grounds of race and gender, in terms of section 6(1) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards her conditions of employment, training and discriminatory dismissal. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(a) that one is a woman and the other is a man (in this Act referred to as "the gender ground"),
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
of race''),"
and Section 85A of the Acts provides:
"(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".
5.2 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 complainant does not discharge the initial probative burden required of them their cases cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Firstly, I will consider the issues that have been raised by the complainant in relation to her conditions of employment which she contends constitutes unlawful discrimination on the grounds of race contrary to the Acts. She submits that the respondent's failure to provide her with a written contract of employment a health and safety statement and a pay slip was discriminatory treatment on the race ground. It was therefore submitted that the Tribunal should infer that the complainant has been subjected to less favourable treatment on the race and gender ground and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination. I was referred to the above mentioned cases and in particular to the case of 58 Complainants -v- Goode Concrete (DEC-E2008-020) and asked to apply the reasoning in that case.
5.4 In considering these issues, I note from the evidence that there were workers of various nationalities employed by the respondent at that time, including those of Latvian, Polish and Lithuanian origin. There were also three Irish employees. I note that there were no male employee in a comparable position to the complainant. I also note that it was accepted by the complainant that none of these employees were provided with contracts or health and safety statements. I note that the complainant accepts she was provided with a pay envelope containing her wages which had details of the amount of her wages written on the outside and the other employees received their wages in the same way.
5.5 In order to raise an inference of discrimination on the grounds of nationality, the complainants must produce some evidence of less favourable treatment and this treatment must be linked to her nationality. I find that the complainant has not produced such evidence. Having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that she was treated less favourably than an Irish person or a person of a different nationality was treated or would have been, in similar circumstances, in relation to the aforementioned aspects of the conditions of employment. Likewise in relation to the gender discrimination claim, the complainant has to produce cogent evidence that she was treated less favourably than a male employee was treated or would be treated in comparable circumstances. The complainant did not adduce any such evidence. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this part of her complaint.
5.6 The next part of the complainant's claim concerns the allegation that she was subjected to a discriminatory constructive dismissal by the respondent on the race and gender grounds. The complainant stated that she was forced out of her employment by the respondent when he changed her place of work and her hours of work.
5.7 I am not satisfied that the complainant has adduced any evidence to substantiate her claim that she was subjected to any treatment because of her nationality which left her with no option but to leave the employment. In order to raise an inference of constructive discriminatory dismissal on the grounds of nationality or gender, the complainants must produce some evidence of bad treatment and this treatment must be linked to her nationality and sex. I find that the complainant has not produced such evidence. The evidence supports the respondents contention that the complainant left the employment because she was not willing to work the new hours the respondent requested her to work. I find no connection between the complainant's nationality and gender and the ending of her employment. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory constructive dismissal on race and gender grounds.
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:
(i) the respondent did not discriminate against the complainant on the race or gender ground pursuant to sections 6(1), 6(2)(a) and 6(2)(h) of the Acts in terms of her conditions of employment contrary to section 8(1) of the Acts.
(ii) the respondent did not discriminate against the complainant on the race or ground pursuant to sections 6(1) 6(2)(a) and 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
________________________________
Marian Duffy
Equality Officer
30th July 2010