THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 072
PARTIES
Mr. Janis Kazinieks
(represented by Richard Grogan & Associates)
and
Michael McGuigan T/A Trinity Stone Construction
(represented by Branigan & Matthews Solicitors)
File Reference: EE/2007/485
Date of Issue: 12 May 2010
1 Claim
1.1 Mr. Kazinieks, a Latvian national, alleges that he was discriminated against by the respondent in respect of training, conditions of employment and pay on the race ground based on his nationality contrary to the Acts. The complainant also alleges harassment on the race ground in terms of the Acts.
2 Background
2.1 It was clarified at the hearing that the complainant believes he was discriminated against by the respondent when (i) he was required to work excessive hours without the correct breaks, (ii) he was not paid the appropriate REA rate and (iii) that he was harassed because of his nationality. He also alleges that he worked for the respondent from June 2006 until August 2007. The respondent denies all allegations and states that the complainant had the same hours and breaks as other workers, that there was no harassment of the complainant and that no workers were paid the REA rates. The respondent also argues that the complainant was an employee from June 2007 only.
2.2 The complainant referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2008 on 8 October 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 22 July 2009 and my investigation began on that date. The claim was heard on 11 March 2010.
3 Summary of the Complainant's Case
3.1 The complainant, a Latvian national, alleges he worked for the respondent from June 2006 until August 2007 when he returned to Latvia. He claims that he was not given the correct breaks. He worked from 8:30am until 5pm and had 30 minutes break at 10am and again at 1pm. He was paid €70 per day. The complainant did not describe the behaviour asserted to be harassment. The complainant, who worked as a labourer, said that he carried stone and did whatever he was told to do.
3.2 The complainant accepted that he received bonuses from the respondent including tickets to an ice-hockey game as a bonus in addition to payment for work done for the respondent's father. He accepted that he was given dinner on occasion and that when he was leaving to return to Latvia the respondent paid for a fishing trip for the complainant and the other workers as a goodbye gift.
3.3 In relation to harassment the complainant stated that he might be told occasionally that he was working too slow.
3.4 The complainant stated that he asked on numerous occasions if he could be made legal, that is if his employment with the respondent could be regularised.
4 Summary of the Respondent's case
4.1 The respondent was a sole trader who trained abroad as a stone mason subsequently returning to Ireland to work.
4.2 In 2006 he acquired a house for his own home and made enquiries as to who might be able to help him with work on it. He contacted the complainant, whose name he had been given, and asked him to quote for some work on the house. As time went by they built a relationship. The complainant would say he would complete the work for €70 per day and the respondent trusted him to be honest about the length of time any job would take. During this time the respondent had two other workers working with him and as each improved in their work they moved from labourers to working with stone as the respondent did, thus eventually, in June 2007, a vacancy for a labourer was created. He offered the complainant a full time job with Trinity Stone and the complainant accepted. When the complainant wanted to go home to Latvia the respondent organised a fishing trip and gave the complainant two weeks pay.
4.3 Prior to being made full-time the complainant worked for others while he worked on the respondent's house. He was not always available for work when required by the respondent during this time. He also did some work for the respondent's father who had admired his work. The complainant did not work with the other stone masons employed by the respondent before 2007. Before starting full time with the respondent the only work he did was on the respondent's private house and his father's house.
4.4 The respondent was not aware of the REA at the time and so none of the workers were paid REA rates.
4.5 In relation to harassment the respondent stated that it was totally non-existent, that they all got on well and worked as a team. The other workers still work with the respondent.
4.6 Another stone mason working for the respondent stated at the hearing that the complainant did not work with him before 2007. He stated that all those working for the respondent got the same breaks. He also stated that in his opinion there was no harassment of the complainant.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether the complainant was harassed or discriminated against on the race ground based on his nationality in relation to (i) his hours of work and his breaks and (ii) his rate of pay.
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 As the complainant has not presented any evidence that he was harassed as defined in section 14A of the Acts, or that any such harassment was related to his nationality, I find that the complainant has not established facts from which it could be presumed that he was harassed because of his nationality. In that regard I find that he has failed to establish a prima facie case of harassment.
5.4 In relation to breaks, the complainant's evidence was consistent with that presented by the respondent's witness, the stone mason. In addition there was no dispute in relation to the hours worked. As all workers were allowed the same breaks, and worked the same hours, no less favourable treatment arises and therefore in this regard the complainant has failed to establish facts from which discrimination could be presumed. He has therefore failed to establish a prima facie case of discrimination in relation to his work-breaks.
5.5 Based on the evidence presented I am satisfied that none of those working for the respondent were paid the REA rates. Therefore, since no less favourable treatment arises, a failure to pay the complainant the alleged appropriate rate is not discriminatory in this case. The enforcement of REA provisions is not a matter for this Tribunal.
5.6 The complainant was paid €70 per day while working on the respondent's house. I find the complainant was an employee for the purposes of the Employment Equality Acts from June 2006. However, the respondent stated in evidence that the complainant told him what pay rate was required and this was not disputed. Since the pay rate was set by the complainant himself then no less favourable treatment arises. From June 2007 to August 2007 the respondent paid the complainant €400 per week. The complainant has asserted that the respondent would have paid a notional Irish comparator more. While it is unclear whether the assertion related to the whole period or the final 3 month period, no evidence has been presented in support of this assertion in relation to any part of the employment. As stated above in 5. 2 the Labour Court has made in clear that mere assertions are insufficient to shift the burden of proof. Therefore in relation to his pay rate I find that the complainant has failed to establish a prima facie case of discrimination on the race ground based on his nationality.
5.7 I find that the complainant has failed to establish a prima facie case of discrimination on the race ground based on his 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 As the complainant has failed to establish a prima facie case of discrimination on the race ground based on his nationality his claim must fail. This decision is therefore in favour of the respondent.
Bernadette Treanor
Equality Officer
12 May 2010