THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-065
PARTIES
Mr. Rolandas Rudkis & Mr. Arturs Svars
(represented by Richard Grogan & Associates)
and
Felix & Clement Gormley
(represented by Padraig McNamee, BL, acting on instructions from
PJF McDwyer and Co. Solicitors)
File Reference: EE/2007/102
Date of Issue: May 2010
1 Claim
1.1 Mr. Rudkis and Mr. Svars each claim that they were discriminated against in relation to their conditions of employment, pay and their dismissal on the race ground due to their nationality.
2 Background
2.1 The complainants allege that they were discriminated against when they did not receive pay slips and their terms of employment. In addition they allege they were not provided with Health and Safety documentation in a language that they could understand. Finally, when one of their colleagues was found to have stolen property from their employer the complainants allege that their dismissal was discriminatory.
2.2 Both complainants referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2008. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. The case was delegated to me on 23 March 2009 and my investigation began on that date.
3 Summary of the Complainant's Case
3.1 The respondent's business is the processing of scrap metals. The complainants worked in various roles including the cleaning of copper and aluminium in addition to the operation of a digger and a forklift. The work was undertaken by employees of other nationalities including Irish. The complainants received an envelope each week with a cheque. No papers were included with the cheques. The complainants could not indicate if the Irish workers received payslips. There was a paper on the wall of the canteen about Health and Safety in Latvian but the complainants could not recall if it was also there in English.
3.2 Mr. Rudkis, who is Lithuanian, stated that on 11 December 2006 he finished at 6pm and went home with Mr. Svars, who had a car, as they lived in the same place. On the way home there was a Garda checkpoint and Mr. Svars was asked to open the boot. There was a bag in the boot belonging to a third person who was sitting in the back of the car. They were taken to the Garda Station and at 12 am Mr. Rudkis went home. The bag allegedly contained metal stolen from the respondent's premises. The next morning when he arrived at work, the shed where he worked was closed. Mr. Gormley (the respondent) did not believe that Mr. Rudkis was not involved. Mr. Rudkis did not see the third man again.
3.3 Mr. Svars, who is Latvian, began working with the respondent in 2004. He stated that on 11 December 2006 on the way home they were stopped by the Gardai and held in the same place for an hour. They were subsequently taken to the Garda Station. The bag contained a substantial amount of copper but the bag belonged to the third employee. It was put to Mr. Svars that if he took the man home he should know what is in his bag. At 9am on the following morning he got to work and told Mr. Gormley that it was not them. Mr. Gormley said he would speak to the supervisor. He called them back and said to take their cheques and leave.
3.4 In relation to pay, the complainants stated that they worked on Saturdays and that that portion of their salary was paid in cash. It was therefore not put through the normal tax and social insurance processes. The complainants' representative stated that non-nationals State pensions are based on income and therefore a failure to fully declare their income constitutes less favourable treatment of non-nationals on the race ground.
3.5 It was argued that the failure to implement disciplinary procedures was discriminatory and the Labour Court Recommendation Campbell Catering Ltd. V Aderonke Rasaq EED048 was quoted.
3.6 The complainants' representative stated that the
- Health and Safety notice displayed was in Latvian
- No contract or terms and conditions were provided
- No Grievance or disciplinary procedures were provided
- No efforts were made in relation to the allegations of theft and there was no opportunity provided to allow the complainants to put their case.
3.7 Mr. Rudkis denies that he was told he could continuing working with the respondent and denies that he said "if Svars is leaving then I am leaving".
3.8 Both complainants agree with the suggestion that they got on well with the respondent although some of the incidents are disputed.
4 Summary of the Respondent's case
4.1 The respondent stated that he regarded the complainants "like my own son". Assistance was given such as personally transporting Mr. Svars to the Eye and Ear hospital in Dublin when he had a non-work related injury, providing a letter to the bank when Mr. Svars wanted to purchase an apartment and assisting with a bank meeting when he wanted to start his own business. In 2006 Mr. Svars stated that he wanted to leave and requested his P45. Then he changed his mind and asked to be kept on. This was no problem and he was accommodated. Mr. Svars offered to make translations of documents for the respondent. However, Mr. Svars behaviour changed completely during his last 6 months there and made things difficult.
4.2 None of the employees were given payslips or their terms of employment. This has been addressed before the Rights Commissioner's Service.
4.3 The week before the incident Mr. Svars stated that he would not be in on the following Saturday until 10am. On the Saturday morning before they were stopped by the Gardai, the respondent received a phone call from another dealer in Northern Ireland. He was told that there were two men there with some of his copper. The respondent asked the dealer to take their details and get it on film if possible. Mr. Svars arrived at the yard and said nothing. The respondent knew that his goods were in the outer yard and that Mr. Svar's car was the only car leaving the yard. On that Saturday the respondent felt terrible, he felt let down especially because he had "treated him better than my own".
4.4 The respondent received a call in relation to the complainants being stopped by the Gardai and he was asked to identify the copper. The value of the copper of the NI dealer was €680. On the night the complainants were stopped there was 50 Kilos of copper in the bag. The respondent stated that if the bag was lifted its contents would be apparent and any movement of the bag in the car would create noise.
4.5 On the morning following the Garda incident the respondent instructed another employee not to allow the complainants in to work until he got there. He told the complainants that they had let him down. He informed them of the build up to that point and indicated that they could no longer work together. He told Mr. Rudkis that he was not dismissing him. The third employee took the blame. Mr. Svars became aggressive and the respondent was concerned. Mr. Rudkis tried to calm Mr. Svars down. The respondent stated that there was too much evidence to ignore particularly as Mr. Svars was driving the only vehicle in and out of the yard. The respondent was satisfied that Mr. Svars car was used to transport the stolen goods on occasions other than 11 December 2006 and that Mr. Svars was aware of this.
4.6 When the respondent presented Mr. Svars with the cheque Mr. Rudkis declared that he was leaving too.
4.7 The respondent stated that no particular disciplinary procedure was implemented in relation to the complainants and that Mr. Svars did not have a real opportunity to respond to the allegations. When asked if he had considered suspending them the respondent replied that he did not think that the issue in front of him was entitled to any time.
4.8 The respondent's representative raised section 16(1) of the Acts.
5 Conclusions of the Equality Officer
5.1 What is to be decided is whether or not the complainants were discriminated against in relation to their conditions of employment in terms of section 8, whether the failure to properly account for their Saturday pay constitutes discrimination and whether their dismissal or resignation was discriminatory.
5.2 The burden of proof required from the complainant is detailed in section 85A of the Employment Equality Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination, it is for the respondent to prove the contrary. Detailed application of this approach may be found in Mitchell v Southern Health Board [2001] ELR201.
5.3 The complainants have not produced any evidence that other employees were given payslips or their terms of employment. They have, therefore, failed to establish that they were the subject of less favourable treatment and consequently they have failed to establish a prima facie case in this regard. In any event, I note that the respondent has indicated that no other employee received them. I also note that the complainants have pursued the appropriate course of action in relation to non-compliance.
5.4 Allegations were made that the complainants did not receive Health and Safety documentation in a language that they understood. However, at the hearing Mr. Rudkis indicated the advice he was given in relation to Health and Safety. He also stated that there was a document on the wall of the canteen in Latvian. When asked if Irish workers were given any different information he said no and he could not recall if the Latvian document was also in English in the canteen. The respondent produced documents at the hearing that indicated that the complainants completed quiz-style Health and Safety documents. Based on the totality of the evidence presented in this regard I am satisfied that the complainants understood the Health and Safety requirements. They have failed to present evidence indicating that they were the subject of less favourable treatment and, as above, the complainants have failed to establish a prima facie case of discrimination in relation to the Health and Safety documentation
5.5 The complainants allege that the treatment they received in relation to pay for Saturday work was discriminatory because it was not properly processed in relation to PAYE and PRSI. No evidence was presented that would indicate that Irish workers would have been treated differently in relation to these payments by the respondent. In the absence of any evidence I am satisfied that the complainants have failed to establish such facts that would indicate that the treatment received in relation to the Saturday payments was discriminatory. Therefore, the complainants have failed to establish a prima facie case in this regard.
5.6 The complainants allege that the treatment they received in relation to their dismissal was discriminatory. It is agreed that no disciplinary procedure was in existence at the time and that the complainants were not given a real opportunity to defend themselves. These issues, of themselves, are not discriminatory while it might be suggested that they are unfair. However, the claims before me relate to discriminatory dismissal and not to unfair dismissal. The complainants cannot point to other workers in similar circumstances and indicate different treatment. Indeed, the respondent was clear at the hearing that no other dismissals have taken place and therefore it would be impossible for the complainants to find actual comparators. The respondent also argued that Mr. Rudkis was not dismissed; that he, in fact, resigned. The complainant disputes this and claims that he was dismissed.
5.7 The respondent's evidence, presented by Mr. Gormley, was presented clearly and in detail. In the light of this cogent evidence I find the respondent's version of events more compelling and that, technically, the complainant (Mr. Rudiks) resigned. In the absence of any arguments relating to constructive dismissal I shall not address the termination of his employment further. However, I note that the dismissal of Mr. Svars and the resignation of Mr. Rudkis took place during the same incident.
5.8 As mentioned above the evidence presented by Mr. Gormley on behalf of the respondent was clear and cogent. Based on the evidence presented, I am satisfied that his actions were based on his perception of the situation following the events of the previous weeks and months. Nothing in the evidence presented by the complainants would suggest that the dismissal was related to Mr. Svars' nationality, i.e. the race ground. I am satisfied, that Mr. Gormley's approach would have been the same had he been presented with an Irish employee who was believed to have stolen goods from him. The Labour Court in Mulleady v Aidotas Gedrimas, EDA0922 stated:
However, the Complainant presented no evidence of racial discrimination to the Court. The Court is not satisfied that others of a different nationality to that of the Complainant were/would be treated any differently. The Court 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.
The Court also stated:
While the Court is of the view that there were certain procedural defects in the dismissal procedures, which were clearly not in compliance with the Code of Practice on Grievance, and Disciplinary Procedures S.I. No 146 of 2000, however, the claim before the Court concerns an allegation that the Complainant was dismissed on race grounds. The Court is satisfied from the evidence given that the dismissal was for disciplinary reasons and no evidence had been produced to substantiate the claim that it was on the grounds that he was a non-national. While the dismissal may have been unfair, the Court cannot see any basis upon which it could be deemed a discriminatory dismissal.
I am satisfied that the complainant, Mr. Svars, has failed to establish facts that indicate that his dismissal was discriminatory.
5.9 I find that the complainants have failed to establish a prima facie case of discrimination on the race ground based on their nationality.
6 Decision
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts.
6.2 I find that the complainants have failed to establish a prima facie case of discrimination on the race ground based on their nationality. Therefore their claims fail.
Bernadette Treanor
Equality Officer
7 May 2010