THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-038
PARTIES
Ms. Nijole Kvostiene and Mr. Vygandas Ryzgas
(represented by Richard Grogan
& Associates, Solicitors)
and
Cullen Decor Limited
File Reference: EE/2006/399
EE/2007/365
Date of Issue: 24th March, 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - harassment - discriminatory dismissal
1. Dispute
1.1 These cases concern a complaint by Ms. Nijole Kvostiene and Mr. Vygandas Ryzgas, who are Lithuanian nationals, that they were discriminated against by Cullen Decor 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 and in relation to a collective agreement. Mr. Vygandas Ryzgas also claims that he was dismissed in a discriminatory manner.
2. Background
2.1 Ms. Nijole Kvostiene referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 16th July, 2007 and Mr. Vygandas Ryzgas referred a complaint on 17th October, 2006. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 28th May, 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 31st July, 2008. Prior to the hearing of these complaints, the complainants' representative brought it to my attention that the respondent company had been "struck off" the Companies' Register on 19th March, 2008 and that it was subsequently dissolved on 16 January, 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 29th January, 2010.
3. Summary of the Complainants' case
3.1 Ms. Nijole Kvostiene, who is a Lithuanian national, was employed by the respondent as a painter/decorator from 26th June, 2006 until 18th January, 2007. Ms. Kvostiene stated that there were a number of other employees of Polish, Slovakian, Lithuanian and Irish origin employed by the respondent as painters/decorators during her period of employment. Ms. Kvostiene submitted that she did not receive a written contract of employment or any health and safety documentation or training in relation to her employment. She also claims that she was not paid in accordance with Registered Employment Agreement (REA) for the Construction Industry and that she had not been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA.
3.2 Mr. Vygandas Ryzgas, who is a Lithuanian national, was employed by the respondent as a painter/decorator from June, 2006 until 25th August, 2006. Mr. Ryzgas stated that there were a number of other employees of Bulgarian, Lithuanian, Latvian and Irish origin employed by the respondent as painters/decorators during his period of employment. Mr. Ryzgas complains that he did not receive a written contract of employment or any health and safety documentation or training in relation to his employment. He also complains that he was not paid in accordance with Registered Employment Agreement (REA) for the Construction Industry and that he had not been joined to the Construction Workers Pension and Sick Pay Scheme as is required by the REA.
3.3 Mr. Ryzgas stated that he was informed by his supervisor on 25th August, 2006 that his employment was being terminated from that date. He claims that he was dismissed without any proper procedures and was not given any reason for the dismissal by the respondent. Mr. Ryzgas stated that there was also six or seven other employees of Latvian and Lithuanian origin dismissed on this date. He stated that none of the employees who were dismissed on this date were of Irish origin and he claims that work on this site continued after his dismissal. Mr. Ryzgas claims that he was dismissed from his employment on the grounds of his nationality.
3.4 The complainant 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 In a letter dated 16th September, 2008, the respondent informed the Tribunal that the company had ceased trading and it denied that it had discriminated against the complainants on the grounds of their race. The respondent did not attend, nor was it represented, at the Hearing of the complaints.
5. Conclusions of the Equality Officer
5.1 At the outset of the hearing of the complaints, the complainants' representative withdrew the complaints relating to a claim in respect of access to employment, a collective agreement and the complaint of harassment. Accordingly, the issues for decision in this case is whether or not the respondent discriminated against the complainants on the grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards their conditions of employment and training. I must also decide if Mr. Vygandas Ryzgas was subjected to discriminatory dismissal on the grounds of race contrary to section 8 of those Acts.
5.2 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 Complainant to prove the primary facts upon which he/she relies in seeking to raise an inference of discrimination. It is only when he/she has 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 him his case 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 issue that has been raised by the complainants in relation to the respondent's failure to provide them a written contract of employment and a health and safety statement/training in a language which they could understand which they contended constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. The complainants have submitted that the Decision of this Tribunal in 58 Complainants -v- Goode Concrete places an obligation on an employer to furnish non-Irish employees with a contract of employment/health and safety statement in a language which they could understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes it's employees with contracts of employment/health and safety statements it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment/health and safety statement in English and not in a language which they can understand.
5.4 In considering this issue, I note of the evidence of Ms. Kvostiene that she had a vague recollection of signing some documentation upon the commencement of her employment and also of receiving a number of training courses in the area of health and safety during the period of her employment. However, she could not be specific as to the precise nature of the documentation that she signed or the training that she received. I also note that Ms. Kvostiene stated that these training courses were delivered in the English language; however, she stated that on occasions the content of these courses were explained to her in her own language (i.e. Lithuanian) and she confirmed that she was able to understand the contents. Mr. Ryzgas stated in evidence that he did not receive a written contract of employment or a health and safety statement/training whilst in the employment of the respondent.
5.5 The complainants stated in evidence that there were workers of various nationalities employed by the respondent during the period of their respective employments, including those of Latvian, Polish, Slovakian, Lithuanian, Bulgarian and Irish origin; however, 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.
5.6 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."
5.7 In the present cases, 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 of 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. 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 cases, 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 statement/training. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaints.
5.8 The next issue raised by the complainants relates to the respondent's failure to pay them in accordance with the Registered Employment Agreement (REA) or to join them to the Construction Workers' Pension and Sick Pay Scheme. The complainants submit that this constitutes discriminatory treatment of them on the grounds of race contrary to the Acts. The Industrial Relations Act, 1946 (as amended) provides the Labour Court with jurisdiction on any question as to the interpretation of an REA or its application to a particular person and this Tribunal no authority in those issues. However, allegations that the terms of the REA are being provided in a discriminatory manner do fall within the remit of this Tribunal.
5.9 In the present case, the complainants could not confirm whether or not the other employees (including those of Irish origin) engaged by the respondent during their period of employment were paid in accordance with the REA or joined to the Scheme. Again, the complainants submitted that an Irish employee would have been aware of his/her rights under employment law and would therefore have insisted that the respondent comply with it's obligations in terms of this aspect of their conditions of employment. Having regard to the evidence adduced in the present cases and in applying the reasoning of the Labour Court in the Melbury Developments Limited case, I am not satisfied that the complainants have established any facts from which it could be inferred that they were treated less favourably than other workers of a different nationality (including those of Irish origin) in terms of the manner in which the REA was applied to their conditions of employment. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of their complaints.
5.10 The final issue that I must consider relates to the claim by Mr. Vygandas Ryzgas that he was subjected to discriminatory dismissal on the grounds of his nationality. In considering this issue, I note Mr. Ryzgas stated that he was summarily dismissed by his supervisor on 25th August, 2006 without any proper procedures and that he was not given any reason for the dismissal. Mr. Ryzgas also stated that a number of other non-Irish national workers (of Latvian and Lithuanian origin) were dismissed on this date whereas a number of Irish employees were retained in employment by the respondent on the site where he had been working. In the circumstances, I have found the complainant's evidence to be credible and I am therefore satisfied that his uncontested evidence is sufficient to establish a prima facie case of discrimination on this element of his complaint. I also find that the respondent has failed to rebut that inference so raised as it did not attend, nor was it represented, at the Hearing. It follows therefore that the complainant is entitled to succeed in this element of his complaint.
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). I find that the respondent did not discriminate against Ms. Nijole Kvostiene and Mr. Vygandas Ryzgas on the race ground pursuant to section 6(2)(h) of the Acts in respect of their conditions of employment and training contrary to section 8(1) of the Acts.
(ii). The respondent did discriminate against Mr. Vygandas Ryzgas 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.
6.2 In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay Mr. Vygandas Ryzgas €2,500 in compensation for his discriminatory dismissal. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and therefore not subject to tax.
______________
Enda Murphy
Equality Officer
24th March, 2010