EQUALITY OFFICER'S DECISION NO: DEC-E/2010/064
PARTIES
MATULEVIC
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
JOR SECURITIES LTD. (IN LIQUIDATION)
File No: EE/2008/30
Date of issue 5 May, 2010
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8 and 77 - race- employment status - discriminatory treatment - discriminatory dismissal - conditions of employment - burden of proof.
1. DISPUTE
This dispute involves a claim by Mr. Andrej Matulevic, who is a Lithuanian national, that he was (i) discriminated against by the respondent in respect of his 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 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 complainant contends he was employed by the respondent as a Security Operative between 4-27 August, 2007. He further contends that during his period of employment he was treated less favourably as regards his conditions of employment and was dismissed by the respondent in circumstances amounting to discrimination on grounds of race (Lithuanian nationality) contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 21 January, 2008. In accordance with her powers under the Acts the Director delegated the complaint 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 complaint commenced on 13 November, 2009 the date the complaint was delegated to me. Submissions were received on behalf of both parties and in accordance with the normal procedures of the Tribunal the Equality Officer furnished written notice of the Hearing arrangements (scheduled for 2 March, 2010) to the representative on record for the parties on 8 January, 2010. The representative on record for the respondent replied on 11 January, 2010 advising that the respondent had gone into liquidation, that it was no longer representing the respondent in the matter and as far as it knew the Directors of the respondent had emigrated abroad. Neither it nor the complainant's representative was able to furnish details of the appointed Liquidator. Consequently, the respondent was neither present nor represented at the Hearing which took place on 2 March, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Lithuanian national, states that he commenced employment as a Security Operative with the respondent on 4 August, 2007. He adds that he obtained the job through a friend and that his Line Managers were named Paddy and Dino. He states that he worked 23 consecutive shifts in total at a location (building site) in North County Dublin before he was dismissed on 27 August, 2007 and rejects the respondent's assertion (contained in the submission furnished on its behalf) that he was never employed by it. He states that he did not receive a written contract or terms of employment and contends that this constitutes unlawful discrimination of him on grounds of race contrary to the Acts. He submits 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 contract of employment in a language which they understand. In the course of the Hearing the complainant stated that he was aware of two other employees who worked as Security Operatives whilst he was there - one was Lithuanian and the other was Irish. In the course of the Hearing the complainant further stated that the Lithuanian employee did not receive a contract of employment or other documentation but was unable to confirm whether or not the respondent had provided the Irish employee with any such documents, adding that he believed all the employees were working under unlawful arrangements. It was further submitted on behalf of the complainant that an Irish employee would not have worked 23 consecutive days and that this also constitutes discrimination of him on grounds of race contrary to the Acts.
3.2 The complainant states that the respondent failed to provide him with a health and safety statement or documentation in a language which he could understand. He further states that he received no health and safety training at all during his employment. In the course of the Hearing the complainant stated that he was told by Paddy what areas of the site were dangerous and was also given a telephone number to ring in the case of emergencies. He added that he was able to understand this instruction. He was unable to say whether or not either of the other Security Operatives employed at the same time as him received any health and safety training or documentation. It is submitted on his behalf that the respondent's action constitute less favourable treatment of him on grounds of race, contrary to the Acts. He seeks to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete in this regard.
3.3 The complainant states that there was an incident at the site on 24 August, 2007 when a window was broken. He adds that he phoned the contact number he was given and Paddy arrived to the site. The complainant states that Paddy told him it was not a big issue and the complainant continued with his shift. He states that when he finished his shift on 27 August, 2007 Paddy approached him and told him that the respondent was relocating him to another site and he (Paddy) would contact him with details. The complainant states that when he did not receive a call from Paddy four/five days later he made a number of unsuccessful attempts to contact Paddy himself. The complainant adds that he had no further contact with the respondent. He states that the other Lithuanian and the Irish Security Operatives remained in the respondent's employment and he was replaced within days by another Lithuanian national. It is submitted on behalf of the complainant that the respondent's treatment of him constitutes discriminatory dismissal on grounds of race contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
The respondent neither attended the Hearing nor was it represented at same.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant 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 his conditions of employment and (ii) dismissed the complainant 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 Before examining the substantive elements of this complaint I must address the issue of whether or not the complainant was an employee of the respondent - an assertion which was disputed by the respondent's representative in the written submission filed on its behalf by its then representative on 3 November, 2008. In order to avail of the rights and entitlements prescribed at sections 8 and 77 of the Employment Equality Acts, 1998-2007 a complainant must be (or have been) an employee of the respondent as defined by section 2 of the Acts. I must therefore, in the first instance, decide whether or not the complainant was an employee of the respondent and consequently has the locus standi to pursue his complaint before this Tribunal. The complainant gave direct (and uncontested) evidence at the Hearing that he was employed by the respondent as a Security Operative at a location in North County Dublin from 4-27 August, 2007. The respondent's submission disputes this assertion. I note however that the respondent's submission has a letter appended to it which is dated 3 January, 2008 and is addressed to the complainant's representative from the respondent's representative at that time. This letter contains the following statement - "Your client is fully aware that he received particulars of his terms of employment and that those conditions are not in breach of any registered agreement....". This sentence is clearly inconsistent with the assertion contained in the respondent's submission. The respondent did not attend nor was it represented at the Hearing. I have evaluated the evidence adduced by the parties on this matter and I find that the complainant was employed by the respondent in August, 2007. He is therefore entitled to proceed with his complaint before this Tribunal.
5.3 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 complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Lithuanian.
5.4 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 the 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.
5.5 The first issue raised by the complainant relates to the respondent's alleged failure to furnish him with a written contract of employment or other details of his conditions of employment. In the first instance it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal. The complainant stated that his Lithuanian colleague did not receive any contract of employment or other documentation but he was unable to state if the Irish Security Operatives did so. He was also unable to say if either of these colleagues received health and safety training and/or documentation. He further contends that an Irish employee would not have worked 23 consecutive days for an hourly rate of pay which fell considerably below what was provided for in the Registered Employment Agreement (REA) for the industry and that this also constitutes discrimination of him on grounds of race contrary to the Acts.
5.6 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."
In the instant case I am not satisfied that the complainant has adduced evidence from which a prima facie case of discrimination in respect of the failure of the respondent to provide him with a written contract of employment or other documentation could be inferred. I have reached a similar conclusion as regards the alleged failure of the respondent to provide the complainant with the appropriate health and safety training and documentation in a language he could understand and he cannot therefore succeed with these elements of his complaint.
5.7 The complainant also asserts that he was assigned shifts for 23 consecutive days and that this level of assignment would not have been imposed on an Irish employee. I note the complainant states there was an Irish employee engaged at the same time as him but adduced no evidence that this employee was assigned a less onerous shift pattern to his. I also note the Decision of the Labour Court in Melbury Developments v Arturs Valptters where it commented on the procedure prescribed at section 76 of the Employment Equality Acts, 1998 - 2007 as follows "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.". This procedure was utilised in the instant case but questions concerning the assignment of shifts were not put to the respondent. I am satisfied that all the complainant has proffered in support of his contention that he was treated less favourably as regards this aspect of his complaint 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 5.6 above). I therefore find that the complainant has failed to establish a prima facie case of discrimination contrary to the Acts in respect of this element of his complaint.
5.8 The complainant asserts that one of his Line Managers (Paddy) approached him after he had finished his shift on 27 August, 2007 and told him that the respondent was relocating him to another site. And that it would contact him with details of his new work arrangements. He adds that this never happened, that he (the complainant) made a number of unsuccessful attempts to contact Paddy about the matter and he never returned to work. It is submitted on his behalf that this constitutes discriminatory dismissal of him on grounds of race contrary to the Acts. I note the complainant stated in the course of the Hearing that the two Security Operatives employed at the same time as him were retained in employment by the respondent. One of these was Lithuanian, the same nationality as the complainant. I further note that the complainant's evidence that he was replaced by another Lithuanian national. The complainant made reference to an incident three days before the alleged termination of his employment and I think it is reasonable to assume that this incident may have had some bearing on the respondent's decision. The Labour Court in its Decision Muleadys Ltd v Aidotas Gedrimas commented that that arbitrary dismissal of employees by an employer in not a confined to non-Irish workers. I have carefully examined the evidence presented by the complainant in the instant case and I whilst I accept that he was dismissed in an arbitrary and possibly unjust manner, I am not satisfied that he has adduced evidence to support his assertion that his nationality was a factor which influenced the respondent's behavior. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that the complainant has failed to establish a prima facie case of (i) 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 (ii) that he was dismissed 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 entire complaint must therefore fail.
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Vivian Jackson
Equality Officer
5 May, 2010