EQUALITY OFFICER'S DECISION NO: DEC-E/2010/037
PARTIES
PUSKORIUS AND SOLDATJONOKS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
SECUREZONE MANHOUR LTD. (IN LIQUIDATION)
File No: EE/2007/146 &147
Date of issue 23 March, 2010
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8 and, 77 - race - discriminatory treatment - discriminatory dismissal -conditions of employment - burden of proof.
1. DISPUTE
This dispute involves claims by Mr. Jevgenijs Soldatjonoks and Mr. Tautvydas Puskorius , who are both Lithuanian nationals, that they were (i) discriminated against by the respondent in respect of their conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts.
2. BACKGROUND
2.1 The complainants were employed by the respondent as Security Operatives - Mr. Soldatjonoks between March, 2005 and January, 2007 and Mr. Puskorius from August, 2004 until January, 2007. They contend that during their periods of employment they were treated less favourably as regards their conditions of employment on grounds of race (Lithuanian nationality) contrary to the Employment Equality Acts, 1998-2007. They further contend they were dismissed in circumstances amounting to discrimination on the same ground contrary to the Acts. The complainants withdrew their complaints of harassment on the grounds of race at the beginning of the Hearing.
2.2 The complainants referred complaints under the Employment Equality Acts, 1998-2007 to the Equality Tribunal on 12 March, 2007. In accordance with her powers under the Acts the Director delegated the complaints to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaints commenced on 28 August, 2009 - the date the complaints were delegated to me. Submissions were received from both parties and a Hearing on the complaints took place on 27 January, 2010. The respondent was represented at the Hearing by the appointed Liquidator.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainants, who are Lithuanian nationals, commenced employment as Security Operatives with the respondent - Mr. Soldatjonoks in March, 2004 and Mr. Puskorius in August, 2004. Both of them worked on sites in North County Dublin. Both complainants state that they received a contract of employment and that this contract was in English. Mr. Soldatjonoks states that his level of English was poor at that time but a colleague translated it for him and he understood what he was signing. Mr. Puskorius states that the contract was not translated for him and he did not understand it because it was in English. It is argued on the complainants' behalf that this constitutes less favourable treatment of them contrary to the Acts and in support of this contention the complainants seek to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete . In the course of the Hearing the complainants stated that there were 10/12 other Security Operatives employed by the respondent over their periods of employment (they were assigned on a team basis) and these employees were Irish, Lithuanian, Latvian and African. They were unable to confirm whether or not the respondent had provided any of these employees with contracts of employment.
3.2 The complainants state that the respondent failed to provide them with a health and safety statement or health and safety documentation in a language which they could understand. They further state that they received no health and safety training at all during their employment. They both accept that they received a copy of the respondent's "Standard Operational Procedures and Code of Conduct" but state that they did not understand it at the time they signed it. They add that the contents of this documentation was not translated for them by either a professional translator or another employee at the time. In the course of the Hearing the complainants were unable to say whether or not any of the other Security Operatives employed at the same time as them received any health and safety training or documentation or had any such material translated for them. It is submitted on their behalf that the respondent's actions constitute less favourable treatment of them on grounds of race, contrary to the Acts. The complainants seek to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete in this regard.
3.3 The complainants state that they worked at sites in North County Dublin, although the majority of their time was spent at one location. Both add that during their periods of employment they always worked night shifts and weekends. They state that Irish employees rarely worked these shifts. In the course of the Hearing both complainants confirmed that non-Irish employees worked day shifts, although this was a rare occurrence. Mr. Soldatjonoks states that when he requested weekday shifts in the normal course of his working week the Supervisor ignored his request. In addition, he states that when he requested transfer to a site closer to his home he was told there were no vacancies there. Mr. Puskorius also states that when he requested weekday shifts in the normal course of his working week the Supervisor ignored his request. Both state that the shifts were allocated by the Supervisor and they were unsure of the basis upon which this allocation was made. In addition neither were able to point to any employee who commenced employment with the respondent after them who was assigned to day shifts. It was submitted on the complainants' behalf that the allocation of almost exclusively night and weekend shifts to them constitutes discrimination of them contrary to the Acts. In this regard the complainant seek to rely on the Decision of this Tribunal in Cers & Eimas v Securezone Manhours .
3.4 Both complainants state that he were not paid the appropriate Sunday and Weekend premium pay rates as agreed by the Joint Labour Committee (JLC) for the security industry. They add that they were not aware of the existence of this document and they were therefore unaware of their entitlements under it. It is submitted on their behalf that this constitutes discrimination of them contrary to the Acts. In the case of Mr. Puskorius he states that he did not receive the rate of pay contained in the contract of employment and this constitutes less favourable treatment of him on grounds of race contrary to the Acts.
3.5 Both complainants contend that they were dismissed in circumstances amounting to discrimination on grounds of race. Mr. Soldatjonoks states that he received a phone call from his Supervisor on the morning of 15 January, 2007 - just after he had finished his shift - instructing him to attend a meeting in the Office at 10 o'clock that morning. He attended as instructed and states that there were 5/6 other employees there - Lithuanian, Latvian and African. He states that the owner of the company told them "that the company doesn't need you anymore and they were finished" and the complainant left the premises. The complainant adds that he was given no further explanation for his dismissal. He rejects the respondent's assertion that there were disciplinary issues underpinning his dismissal. Mr. Puskorius states that he too received a phone call from his Supervisor on the morning of 15 January, 2007 instructing him to attend a meeting later that morning. He attended as instructed and states that there were 5/6 other employees there - Lithuanian, Latvian and African. He adds that the owner of the company told him "there were problems with clocking in and they were dismissing him". The complainant rejects that there were issues about his timekeeping and states that the matter had never been raised with him prior to that meeting. He was unable to say what reasons the other employees were given for their dismissal but he was sure they were also dismissed that day. It is submitted on the complainants' behalf that they were dismissed in circumstances amounting to discrimination on grounds of race contrary to the Acts. In this regard the complainants seek to rely on the decision of the Labour Court in Campbell Catering v Aderonke Rasaq .
4. SUMMARY OF RESPONDENT'S CASE
The respondent was represented by the appointed Liquidator at the Hearing. However, this representative was unable to advance any evidence in support of the respondent's case in the course of the Hearing.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainants on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts as regards their conditions of employment and (ii) dismissed the complainants in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts. 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.
5.2 Section 6(1) of the Employment Equality Acts, 1998 - 2007 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)....."
Section 6(2) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "
It follows therefore that the complainants must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because they are Lithuanian.
5.3 Section 85A of the Employment Equality Acts 1998-2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires a complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.
5.4 In a recent Determination the Labour Court , 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."
5.5 The first issue raised by the complainants relates to the respondent's failure to provide them with either a contract of employment in a language they could understand or interpretation of their contract of employment (which was prepared in English) into a language they could understand. In 58 Complainants v Goode Concrete this Tribunal held that in circumstances where an employer provides its employees with contracts of employment, it may constitute less favourable treatment of non-Irish employees if the employer provides them with a contract in English and not in a language which they can understand. The Equality Officer went on to say in that Decision that if an employer is not in a position to provide contracts in different languages it should at the very minimum ensure that the contents of the contract is explained to those employees and have them sign a document confirming that the contract had been explained to them. In the instant case Mr. Soldatjonoks states that at the time he signed the contract of employment it was translated for him by a colleague and he understood its contents. Mr. Puskorius states that the contract was not translated for him and he did not understand it because it was in English. The respondent filed a submission on the complaints with this Tribunal prior to the Tribunal being notified the respondent had been placed into Liquidation. I am satisfied from that submission that the contract of employment (in English) signed by the complainants - copies of which were furnished to the Tribunal - are standard ones which it issued to all employees, regardless of their nationality or their ability to understand the English language. In the circumstances I find that Mr. Soldatjonoks has failed to establish a prima facie case of discrimination on this aspect of his complaint. In the case of Mr. Puskorius I find that he has established a prima facie case of discrimination, which the respondent has failed to rebut and he is therefore entitled to succeed on this issue.
5.6 The complainants also submit that the respondent's failure to furnish them with a health and safety statement/documentation and health and safety training constitutes less favourable treatment of them contrary to the Acts. I note that the complainants accept they received a copy of the respondent's "Standard Operational Procedures and Code of Conduct" - a document which was appended to the respondent's submission filed with this Tribunal. This document deals with the code of conduct - hours, uniform, timekeeping etc. which employees are required to abide by in the discharge of their duties and in my view is an extension of the contract of employment, rather than issues concerning health and safety. The complainants stated that they received no other documentation from the respondent connected with health and safety. They were unable to say whether or not any of the other Security Operatives employed during their periods of employment with the respondent received any health and safety documentation or training from the respondent. Having given careful consideration to the matter I am not satisfied that the complainants have adduced evidence from which a prima facie case of discrimination in respect of the provision/non provision of the appropriate health and safety training and documentation could be inferred.
5.7 The complainants state the during their entire periods of employment with the respondent they were assigned night and weekend shifts and that when they requested day shifts, or a move to another location in the case of Mr. Soldatjonoks, they were ignored by the Supervisor or told there were no vacancies elsewhere. They further assert that Irish employees were never assigned the weekend shifts and that the vast majority of day shifts were assigned to Irish employees. The complainants were however unable to say the basis upon which shifts were assigned. In addition, they were unable to say if any employee, but particularly any Irish employee, commencing after them was immediately assigned day shifts. As the Labour Court held in Melbury Developments v Arturs Valpetters "knowledge of how the complainant's fellow workers were treated is not exclusively or almost exclusively within the knowledge of the Respondent. Nor could it be said that it is peculiarly within the range of the Respondent's capacity of proof. It is also plainly within the knowledge of those other workers. The complainant could have sought to ascertain from those workers if they were treated as sub-contractors or employees.". The Court went on to observe "there is a provision for the obtaining of information from a Respondent under Section 76 of the Acts which is intended to be in ease of a Complainant who would otherwise be unable to obtain necessary proofs in order to process a complaint under the Acts.....This procedure was utilised in this case but questions were not put concerning the employment status ascribed to other employed by the Respondent.". In the instant case the complainants did not enquire from their fellow workers if they knew the basis upon which they were assigned their shifts. In addition, the procedure prescribed under section 76 of the Acts was utilised in respect of both complainants but questions concerning the assignment of shifts etc. were not put to the respondent. In light of the foregoing and having carefully considered the arguments advanced by the parties, I am satisfied that all the complainants have proffered in support of their contention that they were treated less favourably as regards this aspect of their complaints is a mere assertion unsupported by any evidence - a proposition rejected by the Labour Court as being sufficient to discharge the initial probative burden required of them (see paragraph 5.4 above). I therefore find that the complainants have failed to establish a prima facie case of discrimination contrary to the Acts in respect of this element of their complaints.
5.8 The complainants assert that certain aspects of the JLC for the Security Industry were not applied to them - in particular the appropriate Sunday and Weekend premium pay rates. Both this Tribunal and the Labour Court have indicated on several previous occasions that complaints in relation to the non-implementation of terms of JLC's are matters governed by the Industrial Relations Acts and that as such no cause of action rests under equality legislation, unless the terms of same have been applied in a discriminatory manner. The complainants adduced no evidence to support such a proposition and having regard to the Labour Court's dictum in Melbury Developments v Arturs Valpetters at paragraph 5.4 above their complaints on this issue cannot succeed. Mr. Puskorius states that he did not receive the hourly rate of pay contained in his contract of employment. Enforcement of this entitlement also rests outside the ambit of employment equality legislation unless he can satisfy the Tribunal that the alleged treatment constitutes less favourable treatment of him. The complainant has not adduced any evidence to support this assertion and consequently this element of his complaint cannot succeed.
5.9 Both complainants submits that the respondent dismissed them on 15 January, 2007 in circumstances amounting to discrimination on grounds of race contrary to the Employment Equality Acts, 1998-2007 - i.e. because they were Lithuanian. Based on the uncontested evidence of the complainants I am satisfied that both complainants were dismissed on 15 January, 2007 along with 5/6 other employees - Lithuanian, Latvian and African. In the case of Mr. Soldatjonoks he was informed he was no longer required. In the case of Mr. Puskorius he was told there were issues about "clocking in". It is clear that the termination of Mr. Puskorius's employment falls short of the procedures required by the Code of Practice on Grievance and Disciplinary Procedures . However, the claim before this Tribunal is not one of unfair dismissal, rather it is that the complainant's dismissal was contrary to the employment equality legislation on grounds of race. As the Labour Court recently commented it has dealt with many cases "where employers are accused of dismissing workers without resorting to the appropriate disciplinary procedures and such cases are by no means confined to workers whose national origin is outside Ireland." . In the case of Mr. Soldatjonoks his employment was terminated because he was no longer required. I note that other employees of differing nationalities had their employment terminated in similar circumstances. As stated above the Labour Court has previously found that arbitrary dismissal of employees by an employer in not confined to non-Irish workers and in the instant case the complainant has adduced no evidence to the contrary. I find therefore the complainants have failed to establish facts from which it could be inferred that the termination of their employment was influenced in any way by their nationality and this element of their complaints must fail.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of these complaints and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that Mr. Soldatjonoks has failed to establish a prima facie case (a) of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts in respect of his conditions of employment and (b) that he was dismissed by the respondent in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 77 of those Acts and his complaint, in its entirety, cannot succeed.
(ii) that Mr. Puskorius has failed to establish a prima facie case (a) of discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts in respect of those aspects of his conditions of employment concerning health and safety training/documentation, shift allocation and payment of premium rates of pay under the JLC for the Security Industry and (b) that he was dismissed by the respondent in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 77 of those Acts and his complaint on these issues fail.
(iii) the respondent discriminated against Mr. Puskorius on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts in respect of those conditions of employment connected with his contract of employment.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2008 I order that the respondent pay Mr. Puskorius the sum of €1,000 by way of compensation for the distress suffered by him as a result of this discrimination. This award does not include any element of remuneration and is not therefore subject to the PAYE/PRSI code.
_______________________________________
Vivian Jackson
Equality Officer
23 March, 2010