THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-070
PARTIES
Mr. Marius Cesna
(represented by Peter Leonard acting on instructions from
Richard Grogan and Associates)
and
MacHale Plant Hire
(represented by ESA Consultants)
File Reference: EE/2007/403
Date of Issue: 12 May 2010
1 Claim
1.1 Mr. Cesna, a Lithuanian national, claims that he was harassed and discriminated against in relation to training, conditions of employment, and pay on the race ground based on his nationality. He also claims that his dismissal was discriminatory on the same basis.
2 Background
2.1 The complainant referred a claim on 7 August 2007 to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2007. 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 15 July 2009 and my investigation began on that date. The hearing of the claim took place on 11 March 2010.
2.2 At the opening of the hearing the complainant, through his representative, withdrew the harassment aspect of his claim.
3 Summary of the Complainant's Case
3.1 The complainant began working for the respondent on 21 May 2004 and was dismissed on 9 February 2007. He had a Safe Pass but was not given any other training, or documents, relating to health and safety by the respondent. The complainant was unable to state whether other workers received such training or documents.
3.2 The complainant contends he was paid the incorrect rate of pay as other Lithuanian workers got €100 more than him. He received his payslips at his home address every week.
3.3 The complainant alleges that he was required to work long hours but he was unable to indicate who worked shorter hours. He stated that whoever was doing the job that needed to be completed was required to stay on. He had heard rumours that Irish workers, including Irish labourers, were being paid more.
3.4 In relation to his dismissal, the complainant stated that he was working on a demolition job in Bray. At the end of the day on either 31 January 2007 or 7 February 2007 he asked where he was to work tomorrow. He was told someone would call him from head office. The complainant did not receive a call. Next morning, he did receive a call from head office asking where he was. He replied that he was at home. He was told to wait for a further call. When he received the second call he was told to go to a site where he had worked six months earlier. When he arrived at the site he believed was referred to another company was working there. He explained that he was sent by MacHales but they did not know anything about it. When he called head office he was told he was at the wrong site and given directions. He was from 8am until 1pm trying to find the site. He had run out of credit for his phone and almost run out of fuel so he decided to go home again. When he was nearly home he got another call from head office asking where he was. He explained his situation in relation to not finding the site and his fuel and credit situation. He said he was going home. The person on the phone said 'Okay'. This took place on Wednesday but on Friday, or the following Friday, he received his payslip and P45 but had no further contact. with the respondent.
3.5 The complainant accepted that he may have told Rene, his contact in head office, to f*** off during one of the calls but that it had been in jest. During cross-examination the complainant was asked why he had not gone to the office of the site he had visited and asked that they contact his head office. The complainant indicated that he had indeed done that and that the call had been made in front of him. This was not previously mentioned by the complainant even during questioning by his representative.
3.6 The complainant stated that the instructions for the next site were normally very clear. He thought there was something odd about the calls, that there was something going on. He felt that he was being mocked because he had no money for credit or fuel. The complainant was never told that his work was unsatisfactory, he was never given any warnings and there were no disciplinary issues.
3.7 The complainant's representative, in response to arguments presented by the respondent, asserted that the use of a non-recognised grade was a term of art to avoid paying the REA labourer's rate. The complainant was not allowed fair procedures in respect of his dismissal nor was he given a redundancy payment.
4 Summary of the Respondent's case
4.1 The respondent's business involves plant hire, site development, demolition, clearing out factories and general contracting work. It has between 100 to 120 employees at any time. The complainant was employed as a cleaner and not as a general labourer. A cleaner in terms of the complainant's employment is involved in general clearing up of a site or building such as removing rubble and builder's rubbish before demolition or before being taken over by users. A labourer, on the other hand could also lay pipes and work with bricks etc.
4.2 The respondent employs between 10 and 12 non-national workers and the remainder are Irish.
4.3 The respondent had no difficulties with the complainant generally. He was paid the appropriate rate and more. If he was driving a digger on site this was not authorised. At the time of the complainant's dismissal the respondent's main site was in Saggart. When business was slack the complainant was sent to Saggart. Otherwise he was clearing out buildings. When the buildings were cleaned out he would have been moved elsewhere while heavy machinery was used for the actual demolition. Cleaner is a grade that is not recognised for REA purposes and it is not graded by the Construction Federation.
4.4 The complainant was not dismissed, he submitted his notice. The individual dealing with the matter, Rene, worked in the company head-office and is no longer working with the respondent. However Rene indicated to Mr. Mac Hale that he had told the complainant which site to go to in Ballsbridge (and not Blanchardstown). The complainant said he did not want to work with the company any more and according to Mr. MacHale he called Rene "a Dutch so and so". When asked if there was any surprise at this the respondent stated that it was not unusual for construction worker to move at that time. Rene never mentioned any call from a site supervisor from another company.
4.5 The respondent stated that all staff were required to have a Safe Pass. None of the employees were given written terms of employment.
4.6 The complainant was paid €11.13 per hour. When asked why the complainant was not paid the REA labourer's rate of €14.17 the respondent replied that the complainant was not a labourer and that he could not lay pipes. When asked if the complainant might have been joking when he used the bad language the respondent said that it might be possible but it was unacceptable to use such language with senior staff. The respondent also pointed out that the complainant would have had to give a week's notice if he had indicated that he wanted to leave for another job.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether the respondent discriminated against the complainant on the race ground based on his nationality when (i) it failed to pay the complainant the labourer's REA rate, (ii) it failed to provide the complainant with Health and Safety training in a language he could understand and (iii) when it dismissed him.
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. In a recent Determination the Labour Court elaborated on this as follows:
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.
5.3 The complainant argued that since an equal pay claim was impossible in the absence of an actual named comparator, the claim should be addressed in accordance with section 8 of the Acts as pay was an integral part of the complainant's terms and conditions of employment. It was argued that the complainant should be awarded equal pay in comparison to those being paid labourer's rates in accordance with section 8. I am satisfied that the legislation, and indeed caselaw generally, indicates that remuneration should be handled in accordance with sections 7, 19 and 29 of the Acts. To do otherwise removes the requirement on a complainant to name an actual comparator as required and also removes the necessity to prove that like work exists between the complainant and the comparator. I am satisfied that section 8 cannot be used as a vehicle to establish equal pay.
5.4 The complainant has not presented evidence indicating that others were paid REA rates while he was not. In relation to the enforcement of REAs the Tribunal has clearly indicated on many previous occasions that it has no role. Any circumvention of an REA through the use of a grade not specified in the REA, as alleged by the complainant's representative, is not a matter for this Tribunal.
5.5 As the complainant has failed to establish as a fact that he was less favourably treated than others in respect of a discriminatory application of the REA as regards his pay he has failed to establish a prima facie case of discrimination on the race ground based on his nationality in respect of his remuneration.
5.6 The complainant has also alleged that the respondent failed to provide him with Health and Safety training in a language he could understand. In his evidence the complainant stated that he was not told anything about Health and Safety, that he was not given any documents relating to Health and Safety and that he had no idea whether others were given any training or documents relating to Health and Safety. In that regard, therefore, he has failed to establish that there was any difference in treatment between himself and other workers of a different nationality in relation to Health and Safety training and documentation. He has therefore failed to establish a prima facie case of discrimination on the race ground based on his nationality in respect of Health and Safety training.
5.7 Finally, the complainant alleges that he was dismissed and that the dismissal was discriminatory. The respondent asserts that the complainant resigned. Neither party has any evidence in support of their assertions. In the instant case however, I am satisfied that if the complainant told Rene to f*** off and did not contact the respondent again it is unlikely that he would take the time to submit a letter of resignation. In addition, as stated in evidence, movement of workers in the construction industry was relatively fluid at that time. Therefore expecting detailed evidence in support of a resignation, other than the usual documents such as a P45, in such circumstances may be unreasonable. The complainant also has no evidence to support his assertions that he was dismissed. He did state in evidence however, that it was him who told Rene that he was going home. Having considered all of the evidence, on balance I find the respondent's version of events more compelling.
5.8 I find that the complainant was not dismissed, that he resigned. On the basis that there was no dismissal, the question of whether any dismissal was discriminatory does not arise.
5.9 I find that the complainant has failed to establish facts from which it could be presumed that he was dismissed in circumstances amounting to discrimination contrary to the Acts.
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 has failed to establish a prima facie case of discrimination on the race ground based on his nationality in respect of his allegations pertaining to his conditions of employment, his remuneration and his dismissal. His claim therefore fails.
Bernadette Treanor
Equality Officer
12 May 2010