THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-032
PARTIES
Mr. Ramunas Gailius, Mr. Mindaugas Baksaitis
and Mr. Valdas Pavilonis
(represented by Richard Grogan
& Associates, Solicitors)
and
Howley Civil Engineering Limited
(In Compulsory Liquidation)
File References:
EE/2007/348
EE/2007/423
EE/2007/468
Date of Issue: 19th March, 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - harassment - discriminatory dismissal - victimisatory dismissal - claim in relation to a collective agreement - failure to establish a prima facie case of discrimination
1. Dispute
1.1 This case concerns a complaint by Mr. Ramunas Gailius, Mr. Mindaugas Baksaitis and Mr. Valdas Pavilonis, who are Lithuanian nationals, that they were discriminated against by Howley Civil Engineering Limited on the grounds of race contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of access to employment, conditions of employment, training, harassment, discriminatory dismissal and in relation to a collective agreement. Mr. Ramunas Gailius also claims that he was subjected to victimisation contrary to section 74(2) of the Acts.
2. Background
2.1 Mr. Ramunas Gailius referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 9th July, 2007, Mr. Mindaugas Baksaitis referred a complaint on 15th August, 2007 and Mr. Valdas Pavilonis referred a complaint on 3rd September, 2007. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 21st July, 2009 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainants on 12th August, 2008. The Tribunal was informed by Howarth Bastow Charleton Accountants on 23rd September, 2008 that the respondent company had been placed into compulsory liquidation. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 18th February, 2010.
3. Summary of the Complainants' cases
3.1 Mr. Ramunas Gailius was employed by the respondent as a general operative from 8th May, 2006 until 12th April, 2007. Mr. Mindaugas Baksaitis was employed by the respondent as a rigid truck driver from August, 2005 until 11th May, 2007. The complainants stated that they worked on a number of different sites during their respective periods of employment with the respondent. They stated and that there were a number of other employees of Lithuanian, Latvian, Romanian and Irish origin employed by the respondent on these sites during their periods of employment. The complainants stated that they did not receive a written contract of employment or any health and safety documentation or training in relation to their employment. The complainants submitted that following the Decision of this Tribunal in 58 Complainants -v- Goode Concrete there is an obligation on an employer to provide employees with a written contract of employment and health and safety training/documentation in a language which they understand. It was submitted that the respondent's failure to provide them with this documentation and training in a language which they could understand amounts to discrimination within the meaning of the Acts. Mr. Ramunas Gailius also claims that he did not receive a weekly travel allowance that was paid to other workers who were employed by the respondent and he claims that this amounts to discrimination against him on the grounds of his nationality.
3.2 Mr. Mindaugas Baksaitis stated that he was dismissed from his employment by the respondent on 11th June, 2007 after having been informed by his Manager, Mr. Y, that there was no further work available on the site. The complainant stated that all of the other drivers on this site (i.e. approx. 20 drivers in total), which included drivers of Lithuanian and Irish origin, were also dismissed by the respondent on this date. He submitted that the reason for his dismissal was based on his nationality. Mr. Baksaitis stated that he contacted Mr. Y following his dismissal and was informed that there was no further work available for him and that the respondent was only re-employing drivers who held a license to drive an articulated truck. He stated that he informed Mr. Y that he would be able to acquire such a licence within a couple of weeks. However, he was not offered any further work by the respondent following his dismissal. The complainant stated that a number of the other drivers who had also been dismissed on 11th June, 2007 were subsequently re-employed by the respondent on a different site. The complainant stated that a number of the drivers who were re-employed did not have a licence to drive an articulated truck. He submitted that the respondent's refusal to subsequently re-employ him following his dismissal amounted to discrimination in terms of access to employment on the grounds of his nationality.
3.3 Mr. Mindaugas Baksaitis also claims that he was constantly subjected to pressure from his manager, Mr. Y, to try and achieve a higher work output. He claims that he was prohibited from taking breaks during his working day as a result of the pressure that was constantly being applied to increase his work output. Mr. Baksaitis submitted that his treatment by the respondent in this regard constitutes harassment on the grounds of his nationality contrary to the Employment Equality Acts.
3.4 Mr. Ramunas Gailius stated that he was frequently subjected to verbal abuse by his supervisor, Mr. X, on the grounds of his nationality on the last site where he worked prior to his dismissal. He stated that Mr. X would shout obscenities at him such as "you are a fucking Lithuanian", "is this how you do it in Lithuania" and "you should go back to your own country". The complainant submitted that the verbal abuse to which he was subjected by Mr. X constitutes harassment on the grounds of his nationality contrary to the Employment Equality Acts.
3.5 Mr. Gailius claimed that this verbal abuse became so intolerable during the last 4/5 weeks of his employment that he made a formal complaint about this treatment by Mr. X to the respondent's Health & Safety Officer on 2nd April, 2007. The complainant claims that his employment was subsequently terminated by Mr. X on 12th April, 2007 when he was informed by him that the respondent had no further work available for him. The complainant claims that this dismissal was effectively put in place as a penalty for having made a complaint against Mr. X and he stated that work on the site continued for a further 3/4 months following his dismissal. The complainant submitted that the manner in which his dismissal was effected constitutes a victimisatory dismissal contrary to section 74(2) of the Employment Equality Acts.
3.6 The complainants also referred to a number of cases in support of his 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 Liquidator, Mr. Brian McEnery of Howarth, Bastow, Charleton Accountants, did not attend, nor was he represented at the Hearing of the complaints.
5. Conclusions of the Equality Officer
Non Attendance of Mr. Valdas Pavilonis at the oral hearing
5.1 I notified the parties of the date of the hearing, by registered post, on 30th September 2009. I am satisfied that all reasonable efforts had been made to inform all three complainants of the hearing. However, Mr. Valdas Pavilonis did not attend the hearing. As part of my investigation under Section 79 of the Act, I am obliged to hold a hearing. I find that the failure of Mr. Valdas Pavilonis to attend the hearing was unreasonable and that any obligation under Section 79(1) has ceased. As no evidence was given at the hearing in support of the allegation of discrimination in relation to Mr. Pavilonis, I conclude the investigation of his complaint and find against the complainant.
5.2 At the outset of the hearing of the complaints, the complainants' representative withdrew the complaints relating to a claim in respect of a collective agreement. Accordingly, the issues for decision in this case is whether or not the respondent discriminated against, discriminatorily dismissed and harassed the complainants on the ground of their race contrary to the Employment Equality Acts. I must also decide if Mr. Ramunas Gailius was subjected to victimisation contrary to section 74(2) of the Acts.
5.3 Section 85A of the Employment Equality Acts, 1998 to 2008 provides as follows: "(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". 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 complainants do 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.
Conditions of Employment and Training
5.4 Firstly, I will consider the issue that has been raised by the complainants in relation to the respondent's failure to provide them with a written contract of employment and a health and safety statement/training in a language which they could understand which they have contended constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. The complainants stated in evidence that there were workers of various nationalities employed by the respondent during their respective periods of employment, including those of Lithuanian, Latvian, Romanian and Irish origin. The complainants stated that they were not aware if the respondent had issued any of the other employees, including those of Irish origin, engaged at the same time as them with a written contract of employment or a health and safety statement/training. The complainants submitted that an Irish employee would have been aware of his/her rights under both employment and health and safety legislation, and therefore, would have insisted that the respondent comply with it's obligations in terms of this aspect of their conditions of employment. It was therefore submitted that the Tribunal should infer that the complainants have been subjected to less favourable treatment on the grounds of their nationality and accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.5 In considering this issue, I have taken cognisance of the recent determination of the Labour Court in the case of Melbury Developments Limited and Valpeters . In that case the Labour Court stated, inter alia, that:
"Section 85A of the Act 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."
5.6 In the present case, I accept that the complainants have adduced evidence to suggest that they may have been treated badly by the respondent in terms of the provision a contract of employment and a health and safety statement/training. However, I do not have any jurisdiction to decide whether or not the respondent was in breach of it's obligations under the relevant employment and/or health and safety legislation. In this regard, I note that the complainants have referred claims to the Rights Commissioner under the relevant legislation that has been enacted to deal with alleged breaches of an employer's obligations in relation to the aforementioned issues.
5.7 Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination under the Employment Equality Acts. I am therefore not satisfied that the complainants, in the present case, have adduced any evidence from which I could reasonably conclude that they were treated less favourably than other workers of a different nationality (i.e. those of Irish origin) in terms of the respondent's failure to provide them a written contract of employment or a health and safety/training. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination on the grounds of race in relation to this element of their complaints.
5.8 The next issue that I must decide concerns the claim by Mr. Ramuns Gailius that he was subjected to discrimination on the grounds of his race on the basis of the respondent's refusal to pay him a weekly travel allowance. The complainant stated that other workers were paid this travel allowance by the respondent during his period of employment. He stated that the respondent refused to pay this allowance to him despite having requested it's payment during the course of his employment. In considering this issue, I note that the complainant did not adduce any evidence to suggest that it was only the workers of Irish origin who were afforded this allowance. In the circumstances, I am satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that the reason the respondent failed to pay him this weekly travel allowance was in any way attributable to his nationality. Accordingly, I find that the complainant has failed to establish a prima facie of discrimination on the grounds of his nationality in relation to this element of his complaint.
Discriminatory Dismissal in relation to Mindaugas Baksaitis
5.9 The next issue that I must decide concerns the claims by Mr. Mindaugas Baksaitis that he was subjected to discriminatory dismissal by the respondent on the grounds of race contrary to the Acts. In considering this issue, I note the complainant stated in evidence that all of the drivers (i.e. approx. 20 truck drivers) who were working on the site where he was employed, including those of Lithuanian and Irish origin, were dismissed on the same date that his employment was terminated. In the circumstances, I find that I have not been presented with any evidence from which I could reasonably conclude that his dismissal was in any way attributable to his nationality but rather was as a result of the fact that work on the site where he was employed at that juncture had come to a finish. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to dismissal on the ground of race.
Access to Employment in relation to Mindaugas Baksaitis
5.10 I will next consider the claim by Mindaugas Baksaitis that the respondent discriminated against him in relation to access to employment on the basis of its refusal to re-employ him following his dismissal on 11th June, 2007. Mr. Baksaitis stated that a number of the drivers with whom he had worked on the last site prior to his dismissal were subsequently re-employed by the respondent. He claims that the respondent informed him that it was only re-employing drivers who held a license to drive an articulated truck. He claims that, contrary to what he had been told, the respondent subsequently re-employed a number of drivers who did not hold such an license. In considering this issue, I note that the complainant stated in evidence that the majority of drivers that were re-employed were of Irish origin; however, he also stated that he was aware that a driver of Lithuanian origin was also re-employed. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that in order to raise an inference of discrimination on the grounds of nationality, the complainant must be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to his nationality. Based on 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 the reason he was not re-employed by the respondent was in any way attributable to his nationality. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to access to employment on the ground of race.
Harassment in relation to Mindaugas Baksaitis
5.11 Mr. Mindaugas Baksaitis also claims that he was subjected to harassment by the respondent on the grounds of race contrary to the Acts. "Harassment" is defined in Section 14A(7)(a) of the Acts as "any form of conduct related to any of the discriminatory grounds 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". Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". Section 14A(2) of the Acts states that it shall be a defence for an employer to prove that "the employer took such steps as are reasonably practicable ... to prevent the person from harassing the victim or any class of persons including the victim". In the case law that has developed on harassment, this is understood to include the development and implementation of a policy on dignity at work, bullying and harassment, and its implementation in accordance with the principles of natural justice and fair procedures.
5.12 Mr. Baksaitis gave evidence that he was harassed by the respondent on the basis that he was constantly subjected to pressure from his Manager, Mr. Y, to try and achieve a higher work output. He claims that he was prohibited from taking breaks during his working day as a result of the pressure that was constantly being applied to increase his work output. Having regard to the evidence adduced I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that the reason he was subjected to pressure from his Manager to achieve a higher work output was in any way attributable to his nationality. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment on the grounds of his race.
Harassment and Victimisatory Dismissal in relation to Ramunas Gailius
5.13 The final issues that I must consider concern the claims by Mr. Ramunas Gailius that he subjected to harassment and victimisatory dismissal by the respondent contrary to the Acts. Mr. Gailius gave evidence that the harassment to which he was subjected took the form of ongoing verbal abuse by his Supervisor, Mr. X, such as "you are a fucking Lithuanian" and "you should go back to your own country" . According to the complainant, this form of verbal abuse occurred on a frequent basis during a period of 4/5 weeks on the last site where he worked prior to his dismissal. The complainant also gave evidence that this verbal abuse caused him severe distress both in his personal and working life. As I have found Mr. Gailius to be a very credible witness, I accept that he was subjected to verbal abuse by Mr. X which was connected to his nationality during the latter stages of his employment with the respondent. In the circumstances, I find that the complainant's uncontested evidence is sufficient to establish a prima facie case of harassment on the ground of race. I further find that the respondent cannot avail of the defence that is available in section 14(2) of the Acts on the basis that it had failed to present any evidence to suggest that it took such steps as were reasonably practicable to prevent Mr. X from harassing the complainant in the circumstances of the present case.
5.14 Finally, I will deal with the claim of victimisatory dismissal that has been made by Mr. Gailius. "Victimisation" is defined in section 74(2) of the Acts as "For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to - (a) a complaint of discrimination made by the employee to the employer". Mr. Gailius gave evidence that the harassment to which he was subjected by Mr. X became so intolerable in the latter stages of his employment that he was left with no option but to make a formal complaint about this treatment to the respondent's Health and Safety Officer on 2nd April, 2007. The complainant submitted in evidence a copy of the written statement that he made to the respondent regarding this matter. I have no reason to dispute the authenticity of this statement (which has been signed by both the complainant and a member of the respondent's HR staff) and I am satisfied that it corroborates the complainant's oral evidence regarding the nature of the harassment to which he was being subjected by Mr. X.
5.15 I accept the complainant's evidence that he was dismissed from his employment by Mr. X within a matter of days (i.e. on 12th April, 2007) of making this formal complaint to the respondent about the harassment to which he was being subjected. Furthermore, I am satisfied that the reason the complainant was dismissed by Mr. X on this date was directly attributable to the complaint which he had made to the respondent in relation to the discriminatory treatment. In coming to this conclusion, I have taken note of two further documents which were submitted in evidence by the complainant: firstly, a letter dated 12th March, 2007 on the respondent's headed paper (and signed by the Payroll Administrator) stating that the complainant's employment with the respondent was permanent and pensionable; and secondly, the termination of employment form which was signed by Mr. X on the date of the complainant's dismissal which documented that the reason for leaving his employment was the "end of his contract". Based on the information contained in the document dated 12th March, 2007, I am satisfied that the complainant was in permanent employment with the respondent at that juncture. I am of the view that it is completely contradictory, therefore, that he would be dismissed by Mr. X one month later on the basis that his contract had terminated. I have also taken into consideration the complainant's evidence that work on this site continued for a further 3/4 months following his dismissal.
5.16 Having regard to the evidence adduced, I find that the reason the complainant was dismissed on 12th April, 2007 was as a direct consequence of the complaint which he had made to the respondent in relation to the harassment to which he was subjected by Mr. X. Accordingly, I find that the complainant was dismissed by the respondent in circumstances which amounted to victimisation within the meaning of section 74(2) of the Acts.
6. Decision
6.1 Having investigated the above complaint, 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 complainants, Mr. Ramunas Gailius and Mr. Mindaugas Baksaitis, on the race ground pursuant to section 6(2) of the Acts in terms of their conditions of employment and training contrary to section 8(1) of the Acts;
(ii) the respondent did not harass Mr. Mindaugas Baksaitis contrary to section 14A of the Acts;
(iii) the respondent did not discriminate against Mr. Mindaugas Baksaitis on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts;
(iii) the respondent did not discriminate against Mr. Mindaugas Baksaitis on the race ground pursuant to section 6(2) of the Acts in respect access to employment contrary to section 8(1) of the Acts;
(iv) the respondent discriminated against Mr. Ramunas Gailius in relation to his conditions of employment contrary to section 8(1) of the Acts by not taking reasonable and practicable steps to prevent his harassment on the ground of his race contrary to section 14A(7) of the Acts;
(v) the respondent victimisatorily dismissed Mr. Ramunas Gailius contrary to section 74(2) of the Acts.
In accordance with section 82 of the Employment Equality Acts, 1998 to 2008, I therefore order that the respondent:
(i) pay Mr. Ramunas Gailius the sum of €5,000 in compensation for the effects of the harassment.
(ii) pay Mr. Ramunas Gailius the sum of €15,000 in compensation for the effects of his victimisatory dismissal.
These awards are in compensation for the distress experienced by the complainant in relation to the above matters and are not in the nature of pay, and therefore not subject to tax.
______________
Enda Murphy
Equality Officer
19th March, 2010