The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-103
PARTIES
Nijole Kvostiene
(Represented by Richard Grogan & Associates)
AND
Europa Plus Limited
(Represented by O'Connor & Bergin Solicitors)
File reference: EE/2006/288
Date of issue: 18 June 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Race - Training - Conditions of employment - discriminatory dismissal.
1. DISPUTE
1.1 This dispute concerns a claim by Ms Nijole Kvostiene that she was discriminated against by Europa Plus Limited, on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts in relation to conditions of employment and she was dismissed in a discriminatory manner in terms of sections 8 of the Acts and she was discriminated against in relation to a collective agreement in terms of section 9 of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 9 August 2006 under the Employment Equality Acts. On 21 July 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 19 March 2010.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant is a Lithuanian national who worked for the respondent as a painter from 17 January to 23 March 2006. She submits that in order to join the respondent, which was an employment agency, she was required to pay €1,000 for job service training. She received nothing in the way of training and considered the fee to be a signing-on fee.
2.2 The complainant also submits that:
- she did not receive a contract of employment,
- she received no health and safety documentation or training, and that he should have received these in his own language,
- she was engaged on terms that did not comply with the Registered Employment Agreement (REA) for the Construction Industry,
- she was not paid for her last three weeks work.
2.3 The complainant submits that after the job she was working on in Dublin finished she was told she would have to go to Galway to work. She went for one week and was then told there was no more work. This happened after she had paid off the €1,000 training fee through deductions from her wages. The complainant submits that she was dismissed with no reason and with no procedures.
2.4 The complainant submits that this treatment arose because she is a foreign worker and an Irish worker would not have been treated in the same way. There is an obligation on an employer to inform foreign nationals of their entitlements under employment legislation and to fail to do this in a manner which they understand is discriminatory and cited the Campbell Catering v Rasaq¹ case.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that any discriminatory treatment or dismissal took place. The respondent submits it is a recruitment agency who advertised for people in Russian language newspapers in Ireland. The job service training fee was to give all recruits the skills they needed to work; English language training, social skills, interview skills and assistance in applying for jobs.
3.2 They submit that the complainant was placed with a company to work and was not employed by them. Therefore they were not responsible for the pay and conditions of employment.
3.3 The respondent submits that the company where the complainant was placed stopped paying them and they were therefore unable to pay the complainant. This was the same for all people placed with that company. They offered the complainant work as a cleaner but she declined the offer.
3.4 The respondent submitted that the complainant was treated no differently than any other employee, regardless of race.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant withdrew her claim in relation to a collective agreement at the hearing so I have to decide if the complainant suffered discriminatory treatment on the grounds of her race in terms of her conditions of employment and if she was dismissed in a discriminatory manner. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 The respondent contended that they were not a correct respondent as they were an employment agency and the complainant worked for someone else. However the respondent did recruit the complainant and provided her with employment services before placing her with a contractor. They paid her whilst she was working and tried to find her work when that contract finished. Section 2 of the Acts states that an "employee .. means a person who has entered into or works under a contract of employment". I therefore find that complainant, in accordance section 2 was as employee of the respondent, even if the contract was implied, and therefore the respondent is correctly before the Tribunal in this claim.
4.3 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "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 claim the ground is race.
4.4 No evidence was provided by the complainant that she was treated less favourably than another employee. Her representative argued that a notional Irish comparator, who would not have been asked to pay the €1,000, is the appropriate comparator. They contend that this leads to an inference of discriminatory treatment on the grounds of race. In deciding whether the complainants have established a prima facie case I will use the approach taken by the UK Employment Appeal Tribunal in Laing v Manchester City Council, Appeal No. UKEAT/0128/06, paragraph 65, " In our view, if one considers the burden of proof provision in the context of what a claimant needs to establish in a discrimination claim, what it envisages is that the onus lies on the employee to show potentially less favourable treatment from which an inference of discrimination could properly be drawn. Typically this will involve identifying an actual comparator treated differently or, in the absence of such a comparator a hypothetical one who would have been treated more favourably. That involves a consideration of all material facts (as opposed to any explanation)."
4.5 Further, in a recent Determination the Labour Court², whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides 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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
4.6 The respondent did not recruit or place any Irish workers but it did place workers from countries other than Lithuania and it is these workers who are the correct comparators in this claim. As the complainant has failed to adduce any evidence that she was treated any differently than a worker from another country both in relation to her conditions of employment or in relation to her alleged discriminatory dismissal I find that she has failed to prove a prima facie case in relation to both.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did not discriminate against the complainant in relation to conditions of employment and that he was not dismissed in discriminatory manner.
____________________
Hugh Lonsdale
Equality Officer
18 June 2010
¹ Labour Court Determination No. EED048, Campbell Catering Limited v Aderonke Rasaq