THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-071
PARTIES
Mr. Dzinters Kaulins
(represented by Richard Grogan & Associates)
and
Mr. Martin Connolly
(represented by Aaron Shearer BL acting on instructions from McDonough & Breen Solicitors)
File Reference: EE/2007/385
Date of Issue: 12 May 2010
1 Claim
1.1 The complainant's initial claim was one of discrimination in relation to his conditions of employment, pay, harassment, and dismissal on the race ground based on his nationality. He also included an allegation of discrimination on the same ground in relation to a collective agreement.
2 Background
2.1 Mr. Kaulins referred a claim on 27 July 2007 to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2008. In accordance with her powers under section 75 of the Acts, 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 22 July 2009 and my investigation began on that date. The claim was heard on 26 March 2010.
2.2 At the opening of the hearing the complainant, through his representative, indicated that all aspects of his claim were withdrawn with the exception of discriminatory treatment in relation to his conditions of employment and discriminatory dismissal.
3 Summary of the Complainant's Case
3.1 The complainant, a Latvian national, came to Ireland in October 2005. He began working for the respondent in September 2006 laying paving and gardening. He lied about having experience because he needed the job badly. He did not have the Safe Pass training and was not asked about it. He was not given any paperwork relating to his employment and at the hearing he stated that he did not know if other workers were given any documents.
3.2 The complainant stated that he had a very good relationship with the respondent and that they got along very well. He conceded that the respondent had taken him to a local private gym, introduced him to a local soccer club and gave him dinner on numerous occasions. He also agreed that there were numerous gifts of clothes and gifts at Christmas.
3.3 Following the Easter weekend he returned to work but forgot the paper pattern for laying slabs that had been given to him. He went home to get the paper, returned to work and began laying the slabs. The respondent criticised his work saying certain things were incorrect. The complainant stated at the hearing that the respondent stated that he, the complainant, was no good anymore and he let him go. The complainant left and drove home. The complainant accepted that he was a number of days late returning to work after the Easter break and that this was due to his car being seized by the Gardai.
3.4 The complainant did not hear from the respondent again and did not receive his P45 or any other documents. The first time he saw his P45 was when it was presented to the Rights Commissioner during a hearing.
3.5 During questions put to him by his representative the complainant stated that the respondent told him he was working on a building site and asked for his Safe Pass. The complainant told him he would need a free day to get it and when he returned he had a note relating to his completion of the Safe Pass course.
3.6 During cross-examination the complainant described his relationship with the respondent. He stated that it was very good and that they got along very well. He accepted the respondent introduced him to a local soccer club and that despite living several miles away the respondent collected the complainant and took him to the club. The respondent also took the complainant and his family to a local private gym. In addition the complainant had dinner with the respondent several times and the families exchanged gifts.
3.7 The complainant accepted that he was employed by another employer on foot of a positive reference given by the respondent although he never had sight of the reference.
3.8 He also accepted that he did not return to work immediately after the Easter break in 2007. He had had some difficulties with the Gardaí relating to his car. The complainant stated that the respondent was not pleased when he rang him and told him he needed another day off to resolve insurance problems.
3.9 The complainant, during cross-examination, denied calling either the respondent or another worker for the respondent, a Lithuanian, asking for his job back. He alleged that the respondent sacked him because he preferred the Lithuanian worker.
4 Summary of the Respondent's case
4.1 The respondent's business involved landscaping and paving. His business is mostly private but includes some sub-contracts.
4.2 A week after the complainant started working for him he asked the complainant for his Safe Pass which was necessary as they were starting on a building site. The complainant told him it was done and was in the post. The Safe Pass had to be produced because of the site work and as the complainant did not have it yet he took the next day off. He returned the following day with a note.
4.3 The respondent described the complainant as a brilliant worker, a lovely lad to whom he had taken like a son. They worked very well together.
4.4 Immediately after Easter 2007 the complainant did not arrive for work. The complainant informed him that the Gardaí had stopped him and taken his car as he had no tax or insurance. He asked the complainant why he had not called him to let him know and indicated to the complainant that that was "not the way its done". He stated that the complainant was not dismissed, he left the site sometime after their discussion when the respondent moved behind the building to continue his work.
4.5 When the complainant ceased working for the respondent, the respondent provided a very favourable reference to his subsequent employer.
4.6 The respondent stated that his business ceased trading in October 2009.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether the complainant was discriminated in relation to his conditions of employment and whether or not his dismissal 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. 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 did not present any evidence whatsoever that would indicate that he was less favourably treated than his colleagues in respect of his conditions of employment. The complainant's representative indicated that he wished to use a notional Irish comparator who would have known of his entitlements. However, what a notional comparator might have known is irrelevant. What is relevant, should a notional comparator be used, is whether the respondent would have treated the comparator more favourably. No evidence was presented to support that assertion, just as no evidence was presented as to why the existing comparators should not be used. In the absence of any evidence, I find that the complainant has not established form which discrimination could be presumed and therefore he has failed to establish a proma facie case of discrimination on the race ground based on his nationality in respect of his conditions of employment.
5.4 The complainant's second allegation is that he was dismissed and that the dismissal was discriminatory. It is clear that there was a discussion about the complainant's failure to return to work after the Easter break in 2007. Whether or not the complainant telephoned the respondent to let him know what had happened is in dispute. Also in dispute is whether the respondent told the complainant that he was dismissed or whether he told him that his behaviour was unacceptable in terms of passing on information. It is clear the complainant understood that the respondent was annoyed about something and he stated at the hearing that the criticisms related to the standard of his work. The respondent stated that the complainant was a very good worker. It is agreed that their working relationship was very good. It is also agreed that they had a good relationship outside of work. The respondent provided the complainant's subsequent employer with a good reference for the complainant.
5.5 No evidence has been presented that would explain why the respondent might dismiss the complainant on foot of one incident in the face of the previous positive evidence. In this regard I find the respondent's version of events more compelling and I find as a fact that the respondent rebuked the complainant for his failure to inform him of what had transpired. On that basis I find that the complainant was not dismissed. The question, therefore, of whether such a dismissal was discriminatory does not arise.
5.6 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 and his dismissal. His claim therefore fails.
Bernadette Treanor
Equality Officer
12 May 2010