Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-088
Parties
Gecas and Stasaitis
(Represented by Richard Grogan & Associates)
- V -
Martello Developments Ltd
File reference: EE/2007/101
Date of issue: 8 June 2010
Keywords
Employment Equality Acts - Discriminatory Treatment - Conditions of employment - Access to employment - Race - Prima facie case
1. Dispute
1.1 This dispute concerns claims by Mr. Ricardas Gecas and Mr. Egidijus Stasaitis ("the complainants") that they were subjected to discriminatory treatment by Martello Developments Ltd ("the respondent") on the grounds of race in terms of section 6(2) of the Employment Equality Acts ("the Acts").
1.2 The complainants referred claims of discrimination to the Director of the Equality Tribunal on 28 February 2007 under the Employment Equality Acts. On 30 November 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case 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 7 May 2010. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision. Documentary evidence requested at the hearing was received on 11 May 2010. A letter requesting a second hearing was received from the complainant's representative on 2 June 2010.
3. Case for the complainant
3.1. It was submitted that the first named complainant, a Lithuanian national, worked with the respondent between 01.09.2005 and 29.09.2006. The second named contractor, a Lithuanian national, worked between 18 May 2005 and October 2006. The complainants were employed as contractors.
3.2. It was submitted that the complainants received no health and safety documentation or training. The complainant stated that they never received contracts of employment. It was submitted, referring to 58 Complainants and Goode Concrete Limited that there is an obligation on employees to provide a contract of employment in a language likely to be understood by the complainant.
3.3. It was submitted that both complainants were paid as self employed contractors. However, a Rights Commissioner has held that the complainant's were employees. As this decision has not been appealed, the Tribunal ought to accept the complainant's status as employees. It was submitted that this has extensive pay, tax, pension and social welfare right implications for the complainants.
3.4. The complainants stated that they were dismissed without any proper procedures been applied to them whatsoever. The complainants believe that they were replaced by a Romanian national who, at the time, would not have been entitled to work in Ireland. The complainants submitted that they, as Lithuanian nationals, ought to have been given preferential treatment as they have a right to work in Ireland without a work permit whereas a Romanian national would have required a work permit at the time.
3.5. It was submitted that the Tribunal ought to consider a notional comparator. An Irish person would have been aware of the rights concerning Health and Safety statements and to a statement under section 3 of the Terms of Employment (Information) Act.
4. Case for the respondent
4.1. It was submitted that at all times the respondent dealt with the complainants in good faith as independent contractors and did not therefore treat them as employees. It is acknowledged that a Rights Commissioner found the complainants to have been in a contract of employment. The complainants have received redress in relation to this manner. It was submitted that in such circumstances where the complainant has already been compensated for such a breach it would be inappropriate and in contravention of the intentions of the legislature to allow the complainants to claim further compensation from this Tribunal arising from what the complainant claims in relation to those legislative enactments.
4.2. It was emphatically denied that the respondent has ever discriminated against the complainants on the grounds of their race, nationality or otherwise. It was submitted that the complainants were a number of non-Irish employees/contractors engaged by the respondent and at all times the complainants were treated fairly and no less favourably than any of the respondent's other contractors and/or employees regardless of their nationality.
4.3. It was submitted that the complainants' contracts with the respondent were fairly and properly terminated. The first named complainant was paid with a cheque on 13 October 2006. The complainant had finished work on 6 October 2006. The second named complainant was paid with a cheque on 27 October 2006. The complainant had finished work on 20 October 2006. The contract was terminated because the respondent did not have any further work for them. Five of the respondents projects finished in 2006 and no new projects started until April 2007. The four small projects that remained did not justify retaining the number of contractors with the respondent at the time when the complainants' contracts was terminated.
4.4. The respondent submitted that it finds it difficult to see how a comparator situation would arise in relation to Romanian workers referred to by the complainant.
4.5. The respondent submitted that there is no evidence of discrimination and/or sufficient evidence to shift the burden of proof to the respondent.
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 a claim that has been dealt with by another body with 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 have been presented with no facts to support such a claim. The Tribunal received documentary evidence in the form of tax certificates to support the respondent's claim that Irish nationals were also employed as contractors in similar circumstances as the complainants.
4.3. I have been presented with no evidence to support an argument that the complainant was treated less favourably than a person of a different nationality would have been treated in similar circumstances of this case. The issue of notional comparator has been addressed in the Labour Court's determinations Eupat Limited (Involuntary Liquidation) v. Businkas EDA103 and Toker Developments Limited v. Edgars Grods EDA105. In most circumstances where a complainant wishes to establish a difference of treatment in conditions of employment, existing employees are the appropriate comparators. In the circumstances of this case, such actual comparators exist. While it has been recognised that a hypothetical comparator may be necessary in determining equal treatment cases is certain circumstances, evidence must be produced to support such an approach.
4.4. Positive action measures are allowed for under the Acts. Such measures depend entirely on the circumstances of the case and the burden of proof rests with the complainant to set out facts that would give rise for an argument of more favourable treatment in relation to a protected ground. The complainants have failed to adduce such evidence.
4.5. The Employment Equality Acts are concerned with less favourable treatment. In order for this Tribunal to consider the matter of the alleged Romanian national the complainants would have to show evidence that they were less favourably treated because they were Lithuanians, not because they ought to have been treated more favourably because of their work permit status. I find that this matter is moot anyway as the complainants submitted that the respondent had contacted another Lithuanian when they required extra contractors.
4.6. In a letter received on 2 June the complainants' representative submitted that they ought to be given the right to cross-examine the Irish employees of the respondent company so that the complainants could determine whether these persons had regarded themselves as employees like they had. Throughout the case the complainants' representative's case was that no Irish person would work as a sub-contractor due to their superior knowledge of Irish employment law. This argument has been rebutted. The complainant has presented no evidence in relation 1) less favourable treatment within the meaning of the Acts or 2) to link such treatment with the complainants' nationality. Therefore there is no justification for a second hearing.
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. Therefore, the complaints fail.
_________________
Tara Coogan
Equality Officer
8 June 2010