THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-068
PARTIES
Mr. Lev Levasev
(represented by Richard Grogan & Associates)
and
Mr. Sean Gregory T/A SMG Transport
File Reference: EE/2007/459
Date of Issue: 7 May 2010
1 Claim
1.1 Mr. Levasev asserts that he was discriminated against by the respondent in respect of training, conditions of employment, holidays and that he was harassed on the race ground based on his nationality. The respondent did not respond to the Tribunal.
2 Background
2.1 Mr. Levasev 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 18 May 2009 and my investigation began on that date. Following some correspondence with members of the respondent's family and with the complainant's representative a hearing took place on 9 April 2010.
3 Summary of the Complainant's Case
3.1 The complainant's representative indicated at the hearing that the aspects of the claim still being pursued related to discriminatory treatment in relation to the complainant's conditions of employment and training.
3.2 The complainant, a Lithuanian national, began working for the respondent on 20 November 2006. He was employed as a driver of a delivery truck. He reported to the Clondalkin Shopping centre, was shown pallets and told to do the best he could. No training was given in relation to Health and Safety including proper lifting techniques. The complainant was unaware as to what training was provided to other drivers.
3.3 The complainant was provided with a manual pallet truck for loading and deliveries. The Irish driver, Dave, was given an electric pallet truck which greatly reduced the effort required. When he asked if he could have access to it he was told that he did not need it as he was big and strong even though the respondent saw him taking painkillers. Dave always had the electric pallet truck regardless of the size and weight of the loads to be delivered.
3.4 The complainant was not given any payslips. When he enquired about payslips the complainant was told that he need not worry because everything was being paid appropriately. He stated in evidence that he asked another driver, an Irish man named Dave, if he got payslips and how much did he ear. Dave told him that he did get payslips but that he would not tell him what he earned as that was none of his business. The complainant was paid most weeks by lodgement into his bank account and some cash.
3.5 The complainant's P45 was not issued until the complainant took his claims to the Rights Commissioner's Service. He had no information on how long it took for other employees to receive their documents.
3.6 The complainant's representative argued that the electric pallet truck should have followed the heavy loads to be delivered but that this was never the case. No adequate explanation was given as to why this was not the case. He also indicated that the complainant had travelled to Ireland for the hearing because he still felt so strongly about the issues involved.
4 Summary of the Respondent's case
4.1 The respondent did not attend the hearing.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether the complainant was discriminated against on the race ground based on his nationality, in relation to his conditions of employment, specifically (i) the failure to provide him with payslips, (ii) the failure to provide access to the electric pallet truck and the failure to provide Health and Safety training.
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 complainant stated that he had no idea what training, if any, was provided to the other drivers in relation to health and safety arrangements. Since the complainant has failed to establish facts from which discrimination may be presumed in relation to training I find that he has failed to establish a prima facie case of discrimination in that regard.
5.4 The complainant stated in evidence that he did not receive payslips. He also stated that he was directly informed by an Irish colleague that he did receive payslips. In the absence of any evidence to the contrary I find, as facts, that the complainant did not receive payslips while an Irish colleague did. Since no explanation has been provided for this, and as this is amounts to a clear difference in race (nationality) and a difference in treatment, I find this treatment to be discriminatory on the race ground based on the complainant's nationality.
5.5 The complainant also described the situation pertaining to pallet trucks in his direct evidence. No explanation has been provided as to why this was only available to one employee rather than being allocated to the heaviest load for delivery. As this amounts to a difference in race (nationality) and a difference in treatment I am satisfied that this treatment was discriminatory on the race ground based on the complainant's nationality.
5.6 I find that the complainant has established a prima facie case of discrimination on the race ground based on his nationality contrary to the Acts in respect of his conditions of employment.
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 complainant was not discriminated against in respect of training relating to Health and Safety. I also find that the complainant was discriminated against on the race ground based on his nationality contrary to the Acts in respect of his conditions of employment.
6.3 I hereby order the respondent to pay the complainant €6,000 for the effects of the discrimination.
Bernadette Treanor
Equality Officer
7 May 2010