EQUALITY OFFICER'S DECISION NO: DEC-E/2010/069
PARTIES
TROSKOVS
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
JOR SECURITIES LTD. (IN LIQUIDATION)
File No: EE/2007/636
Date of issue : 11 May, 2010
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8 and 77 - race- discriminatory treatment - harassment - conditions of employment - burden of proof.
1. DISPUTE
This dispute involves a claim by Mr. Dmitrijs Troskovs, who is a Latvian 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) harassed by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 14A of those Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a Security Operative from April, 2006 until September, 2007. He contends that during his period of employment he was (i) treated less favourably as regards his conditions of employment on grounds of race (Latvian nationality) and (ii) was harassed by the respondent on the same basis (Latvian nationality), contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 4 December, 2007. 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 it 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 representatives on record for the parties on 16 November, 2009. 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. The complainant also referred a complaint of victimisation to the Tribunal (on 25 January, 2008) but this compliant was withdrawn at the Hearing.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is a Latvian national, states that he commenced employment as a Security Operative with the respondent in April, 2006 and worked at approximately twenty different locations in Dublin before he resigned from the employment in September, 2007. 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 could not remember signing the contract of employment (in English) submitted by the respondent's representative (prior to it advising the Tribunal it was no longer representing the respondent) and indeed queries whether or not the signature was his at all. He added that never saw the unsigned Latvian version of the contract (also submitted by the respondent's representative). He states that in any event he does not speak Latvian - his first language is Russian. He added that during his period of employment the respondent engaged 8/9 other employees as Security Operatives - Lithuanian, Latvian and Irish. He was unable to say whether or not any of these employees received a contract of employment.
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. In the course of the Hearing he accepted that he had signed the form submitted by the respondent's representative confirming he had been shown a copy of the respondent's Health and Safety Statement but adds that he did not understand what he was signing. The document he was shown was in English and it was not explained to him. He received no other documentation or instruction on health and safety and he stated he never saw the Health and Safety Statement (in Latvian) submitted on behalf of the respondent - reiterating that he did not understand in any event as his first language is Russian. He was unable to say whether or not any of the other Security Operatives employed at the same time as him received any health and safety training or documentation. It is submitted on the complainant's behalf that the respondent's actions 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 he was not paid the appropriate rate of pay set out by the Joint Labour Committee (JLC) for the Security Industry. He submits that this constitutes less favourable treatment of him contrary to the Employment Equality Acts, 1998 - 2007. In the course of the Hearing the Complainant stated that he did not know if any of the other Security Operatives received the JLC rates of pay, although he believed the Irish employees were paid a higher rate generally. He added that the JLC was never discussed with him and he was unaware of its existence during his period of employment. The complainant states that he did not receive any payslips. In the course of the Hearing he stated that he was not aware of the laws governing payslips during his period of employment and he therefore never requested one. He added that he could not say whether or not other employees received payslips.
3.4 The complainant states that he worked approximately 120 hours per week and provided details of his weekly attendance pattern. He stated that this weekly attendance pattern -which included every weekend - was his attendance pattern from the outset of his employment. In the course of the Hearing he added that during his entire period of employment these shifts were only assigned to non-Irish nationals. The complainant further states that he received no paid holidays during his employment with the respondent although he was unable to state whether any of the other employees were treated in a similar fashion.
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) harassed the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 14A 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 complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because his is Latvian.
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 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.
5.4 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 That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person (see Glasgow City Council v Zafar [1998] 2 All ER 953) before the burden of proof shifts to the respondent. In the instant case I am not satisfied that the complainant has established as a fact that he was treated differently to other Security Operatives of a different nationality who were employed by the respondent at the same time as him, in relation to those aspects of his complaint relating to a contract of employment or health and safety matters. As this Tribunal has stated on many previous occasions 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. Similarly, alleged breaches of health and safety legislation have a separate avenue for redress.
5.6 The complainant states that he was assigned shifts which totalled almost 120 per week. I note he stated that Irish Security Operatives were employed by the respondent during his period of employment that these employees were never assigned these hours. He was however unable to say what shifts the Irish employees were assigned, the basis upon which shifts were assigned generally or if any of the Irish employees were recruited after he was employed. 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 complainant did not enquire from his 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 but questions concerning the assignment of shifts etc. were not put to the respondent. I have carefully considered the arguments advanced on his behalf in relation to this aspect of his complaint and I am satisfied that all the complainant has proffered in support of his contention that he was treated less favourably is a mere assertion unsupported by any evidence - a proposition rejected by the Labour Court as being insufficient to discharge the initial probative burden required of him (see paragraph 5.4 above). I therefore find that the complainant has failed to establish a prima facie case of unlawful discrimination contrary to the Acts in respect of this element of his complaint. I consider it necessary to say that I found the complainant to be an forthright and credible witness and I accept his evidence that he worked these extremely excessive hours. The maximum amount of hours which an employee is required to work is regulated by Organisation of Working Time Act, 1997 and any alleged failure to comply with same has a remedy in the relevant enforcement provisions of that statute.
5.7 The complainant states that he was not paid the appropriate rate of pay set out by the Joint Labour Committee (JLC) for the Security Industry. 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 complainant adduced no evidence whatsoever 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, this element of his complaint cannot succeed. I have reached a similar conclusion in relation to those elements of Mr. Troskov's complaint concerning payslips and annual leave. Again I note that entitlements in relation to these matter are governed by other pieces of employment legislation and remedies for breaches of same rests with fora other than this Tribunal.
5.8 Finally the complainant adduced no evidence to support his allegation of harassment contrary to the Acts and this aspect of his complaint therefore fails.
6. DECISION OF THE EQUALITY OFFICER
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 -
(i) has failed to establish a prima facie case 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
(ii) has failed to establish a prima facie case of harassment on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998- 2007 and contrary to section 14A of those Acts
and his entire complaint must therefore fail.
_______________________________________
Vivian Jackson
Equality Officer
11 May, 2010