EQUALITY OFFICER'S DECISION NO: DEC-E/2010/209
PARTIES
SILLEVICIUS, SURVILA, RATHKEVICIUS AND SURVILA
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
AND
SHEREX LTD.
File No: EE/2006/484
Date of issue:2 November, 2010
Headnotes: Employment Equality Acts, 1998- 2007 - sections 6& 8 - race- discriminatory treatment - conditions of employment - dismissal - prima facie case
1. DISPUTE
This dispute involves claims by (i) Mr. Audrius Sillevicius, (ii) Mr. Algirdis Survila, (iii) Mr. Pouilas Ratkevicius and (iv) Mr. Douydes Survila, who are all Lithuanian nationals, that they were (a) discriminated against by Sherex Ltd (hereafter called "the respondent") in respect of their conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts and (b) dismissed by the respondent in circumstances amounting to discrimination on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts.
2. BACKGROUND
2.1 The complainants state they were employed by the respondent as Motor Mechanics (Mr. Sillevicius and Mr. Ratkevicius ) a Welder (Mr. Algirdis Survila) and a Labourer (Mr. Douydes Survila) at a number of sites in Dundalk and Carlow and a maintenance depot in county Monaghan for varying periods between January, 2006 and July, 2006, when the contend they were dismissed in circumstance amounting to discrimination on grounds of race contrary to the Acts. They further contend that during their periods of employment they were treated less favourably as regards their conditions of employment on grounds of race (Lithuanian nationality) contrary to the Acts.
2.2 The complainants referred their complaints under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 21 December, 2006. In accordance with his powers under the Acts the Director delegated the complaints 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 complaints commenced on 20 September, 2010 - the date they were delegated to me. The parties were advised, by letter dated 14 July, 2010, that the Hearing on the complaints would take place in Chapter House, Dublin on Wednesday 22 September, 2010 commencing at 10.30am. This correspondence was sent by registered post and the letter addressed to the respondent was returned to the Tribunal on 16 July, 2010 marked "gone away". The complainants' solicitor was unable to provide any alternative postal details and furnished an extract for the company from the Companies Registration Office which detailed the registered address for the respondent and indicated the status of the respondent as "normal". As the notification of the Hearing had been posted to the respondent at its registered address (as per documentation submitted by the complainants' representative) I was of the opinion that the Tribunal had complied with the relevant provisions of the Interpretation Acts as regards serving notice on the respondent of the Hearing arrangements and the Hearing proceeded as scheduled. The respondent was neither present nor represented at the Hearing. A small number of points arose at the Hearing which required further clarification from the complainants. This process concluded on 1 October, 2010.
2.3 At the outset of the Hearing the complainants' representative withdrew those elements of all four complainants' claims connected with a collective agreement. It further withdrew those aspects of the complaints in relation to (i) the non-application of aspects of the REA for the Construction Industry in respect of all complainants except Mr. Douydes Survila, (ii) the alleged failure of the respondent to provide health and safety documentation and training to Mr. Algirdis Survila and Mr. Douydes Survila and (iii) the alleged failure of the respondent to furnish Mr. Sillevicius with a contract or written terms and conditions of employment.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 All four complainants, who are Lithuanian nationals, state that they were employed by the respondent for varying periods between January, 2006 and July, 2006 - when they contend they were discriminatorily dismissed. Mr. Ratkevicius, Mr. Algirdis Survila and Mr. Douydes Survila state that during their periods of employment they did not receive a written contract or terms of employment and contend that this constitutes unlawful discrimination of them on grounds of race contrary to the Acts. It is submitted on their behalf 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 these complainants stated that during their periods of employment the respondent engaged other employees of differing nationalities - Irish and Lithuanian - although the numbers involved varied between 8- 15 depending on the location of the site/workplace. None of the three complainants were able to say whether or not any of the Irish employees received a contract of employment or other documentation containing terms and conditions of employment.
3.2 Mr. Algirdis Survila and Mr. Douydes Survila state that the respondent failed to provide them with a health and safety statement/documentation or training in a language which they could understand. In the course of the Hearing Mr. Douydes Survila stated that shortly after he commenced employment he was told by his boss that he had to obtain a Safepass. The complainant added that the respondent organised and paid for him to obtain the Safepass. Neither of the complainants was able to say whether or not any of the Irish employees received health and safety training or documentation during their periods of employment. It is submitted on the complainants' behalf that the respondent's actions constitute less favourable treatment of them on grounds of race, contrary to the Acts. They seek to rely on the Decision of this Tribunal in 58 Complainants v Goode Concrete in this regard.
3.3 It is submitted on behalf of Mr. Doudas Survila that his employment was governed by the Registered Employment Agreement (REA) for the Construction Industry. It is further submitted that the respondent failed to apply the terms of this REA, in particular those elements concerning rates of pay, access to the Pension and Sick Pay Scheme and membership of a trade union, to the complainant. In the course of the Hearing the complainant was unable to say if any of the Irish employees governed by the REA had these terms and conditions applied to them. It is submitted that the failure of the respondent to apply these terms of the REA to the complainant constitutes discrimination of him on grounds of race contrary to the Employment Equality Acts, 1998 and 2004.
3.4 The complainants submitted that the termination of their employment constitutes discriminatory dismissal of them on grounds of race contrary to the Acts. In the course of the Hearing each of the complainants gave evidence on the events leading up to the termination of their employment 8 July, 2006. Mr. Ratkevicius states that he was the conduit between the Lithuanian employees and the owner of the respondent in terms of translating instructions for those employees etc. He adds that on the morning of 8 July, 2006 he and the complainants were working at a site in Carlow (the site was part of a road construction project). Mr. Ratkevicius further states that the owner of the respondent instructed him to operate a forklift in what he (the complainant) considered to be an unsafe manner and when he refused to do so an argument ensued between them. He adds that at the end of this altercation the respondent used offensive language to him and told him to get all the Lithuanians and go home. Mr. Rathevicius states that he understood the respondent's comments to mean that all the Lithuanian employees were dismissed and he went around each of them advising them of this. In the course of the Hearing Mr. Ratkevicius stated that there were ten Lithuanian employees dismissed that day (including himself and the other three complainants in this case) and he provided details of these ten employees to the Tribunal. Mr. Ratkevivius further states that only the Lithuanian employees had their employment terminated that day - the Irish employees were retained by the respondent. It is submitted on behalf of the complainants that they were summarily dismissed by the respondent without any proper procedure, that the sole reason for their dismissal was their nationality and consequently that the termination of their employment constitutes discriminatory dismissal of them on grounds of race contrary to the Employment Equality Acts, 1998 and 2004.
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 are whether or not the respondent (i) discriminated against and the complainants on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 contrary to section 8 of those Acts in respect of their conditions of employment and (ii) dismissed the complainants on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 contrary to section 8 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 Before proceeding to deal with the substantive elements of these complaints I must first be satisfied that the complainants were employed by the respondent at the relevant time and that they can validly maintain their complaints before this Tribunal. This need arises because the respondent failed to engage at any time with the Tribunal in respect of the complaints. At the Hearing I requested documentary evidence that they were employees. The complainants' solicitor subsequently furnished payslips in respect of three of the complainants Mr. Ratkevicius, Mr. Algirdis Survila and Mr. Douydes Survila which confirm that they were employees during the relevant period. It was unable to provide same in respect of Mr. Sillevicius. In the course of the Hearing Mr. Sillivicius stated that he only worked for the respondent for approximately ten days and in those circumstances I am not surprised that there are no payslips available for him. I note however that in the course of the Hearing Mr. Algirdis Survila (in a reply to a question from me about the alleged dismissal of the complainants) mentioned that Mr. Sillevicius was there that day. A similar comment was made by Mr. Ratkevicius. I am therefore satisfied, on balance, that Mr. Sillevicius was also an employee of the respondent at the relevant time. Accordingly, all four complainants are entitled to maintain their complaints for investigation before the Tribunal.
5.3 Section 6(1) of the Employment Equality Acts, 1998 and 2004 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 complainants must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because they are Lithuanian.
5.4 Section 85A of the Employment Equality Acts 1998 and 2004 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.
5.5 In Melbury Developments v Arturs Valpetters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule". 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.
5.6 It is submitted on behalf of three of the complainants (Mr. Ratkevicius, Mr. Algirdis Survila and Mr. Douydes Survila) that the failure of the respondent to provide them with contracts of employment (or terms and conditions of employment) constitutes discrimination of them contrary to the Acts. In the first instance it should be noted that 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. As has been stated by this Tribunal on many previous occasions enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not this Tribunal. In the course of the Hearing each of these three complainants stated that the respondent's workforce at the time comprised Lithuanian and Irish employees. They were unable to say if any of the Irish employees received contracts of employment (or terms and conditions of employment). Having evaluated the evidence adduced by the complainants on this aspect of their complaints I find that they have each failed to show they were subjected to any difference in treatment in comparison with those Irish employees. All each of them has advanced are mere assertions unsupported by any evidence - a proposition which was specifically rejected by the Labour Court as insufficient to discharge the initial burden of proof . Consequently, they have failed to establish a prima facie case of discrimination in respect of this aspect of their complaints and they must fail.
5.7 It is submitted on behalf of Mr. Algirdis Survila and Mr. Douydes Survila that the respondent's failure to provide them with a health and safety statement/documentation or training in a language which they could understand constitute unlawful discrimination of them on grounds of race.. However, in the course of the Hearing Mr. Douydes Survila stated that shortly after he commenced employment with the respondent it arranged and paid for him to obtain a Safepass. This clearly contradicts the original assertion made on his behalf. He was unable to say if any of the Irish employees received health and safety documentation. Mr. Algirdis Survila was unable to say whether or not the Irish employees received health and safety training or documentation. The obligations placed on an employer to provide its workforce with appropriate health and safety training and documentation is governed by the Safety, Welfare and Health at Work Act, 2005. This statute provides for an enforcement process in respect of alleged breaches of that Act and the relevant remedy for same. Such enforcement and remedy does not rest with this Tribunal which deals with complaints of "less favourable" treatment on the grounds provided under the employment equality legislation. I have carefully considered the evidence submitted by the two complainants on this matter and I find that they have failed to establish facts from which it could be inferred they were treated less favourably on the basis of their nationality contrary to the Acts. Consequently, they have failed to establish a prima facie case of discrimination in respect of this aspect of their complaints and they must fail.
5.8 It is submitted on behalf of Mr. Doudas Survila that the alleged failure of the respondent to apply certain aspects of the REA for the Construction Industry to him constitutes discrimination of the complainant on grounds of race contrary to the Acts. Both this Tribunal and the Labour Court have indicated on several previous occasions that complaints in relation to the non-implementation of terms of REA'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 5.5 above, this element of his complaint cannot succeed.
5.9 The final element of the complainants' claims refers to their alleged discriminatory dismissal by the respondent on 8 July, 2006. The main focus of the events of that day is Mr. Ratkivicius. He states that he had a disagreement with the respondent that morning and that the respondent used foul and abusive language at him and said "All you Lithuanians go home". Mr. Ratkevivius adds that he was in effect the spokesperson for the Lithuanian employees and following the altercation with the owner he informed all of the Lithuanian employees (nine altogether) that they had been sacked. The nature of Mr. Ratkevicius's role as indicated above was confirmed by the other three complainants at the Hearing. Mr. Ratkevicius adds that only the Lithuanian employees were dismissed that day - the Irish employees were retained. His version of events was broadly corroborated by two of the other complainants (in terms of the altercation between him and the owner) and by all three complainants (in respect the circumstances surrounding the dismissal of the Lithuanian employees) in the course of the Hearing. I have evaluated the evidence adduced by the complainants - which was uncontested as the respondent failed to attend the Hearing- and I am satisfied that they were dismissed from their employment by the respondent on the date in question. However, in order to succeed with this element of their complaints the complainants must establish, on balance of probabilities, that their dismissal was influenced by their nationality.
5.10 In Goode Concrete v Oksana Shaskova the Labour Court applied the rationale set out by the Court of Appeal for England and Wales in Wong v Igen Ltd & Others and held that a complaint of discrimination will be made out where "a respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision.". As stated above section 85A of the Acts requires a complainants to establish a prima facie case of discrimination in the first instance. Prima facie evidence has been described as "Evidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred." . In the course of the Hearing the complainants gave evidence (independently of each other) in relation to the events of 8 July, 2006 and this evidence was, by and large consistent and I am satisfied that any inconsistencies which emerged can be explained by the fact that the complainants were working in different areas of the site on the day. I accept Mr. Ratkevicius's evidence that the owner of the respondent company used foul and abusive language at him and in a fit of temper told him that all the Lithuanian employees were dismissed. I further accept the complainants' evidence that none of the Irish employees had their employment terminated that day. Having carefully considered the uncontested evidence of the complainants on this matter I am satisfied that their nationality was more than a trivial influence in the respondent's decision to terminate their employment. The respondent did not attend the Hearing to offer any contradictory reasons for its actions and accordingly I find that the complainants were dismissed by the respondent in circumstances amounting to discrimination on grounds of race contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of these complaints and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that -
(i) all four complainants have 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 and 2004 in respect of their conditions of employment and this element of their complaints fails.
(ii) the respondent dismissed each of the four complainants in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2008 I order that the respondent pay (i) Mr. Sillivicius the sum of €1,500, (ii) Mr. Douydas Survila the sum of €5,000, (iii) Mr. Algirdis Survila the sum of €12,000 and (iv) Mr. Ratkevicius the sum of €15,000 by way of compensation for the distress suffered by them as a result of this discrimination. This award does not include any element in respect of remuneration and is not therefore subject to the PAYE/PRSI Code.
_______________________________________
Vivian Jackson
Equality Officer
2 November, 2010